VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00753
Package ID: USCOURTS-cofc-1_18-vv-00753
Petitioner: Patricia Gauthier
Filed: 2018-05-29
Decided: 2021-12-03
Vaccine: influenza
Vaccination date: 2015-10-27
Condition: polymyalgia rheumatica
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Patricia Gauthier filed a petition alleging that she developed polymyalgia rheumatica (PMR) from an influenza vaccination received on October 27, 2015. Respondent filed a report stating that the case was not appropriate for compensation, as Petitioner had not provided sufficient evidence, including a qualified medical expert opinion, to establish that the flu vaccine caused her PMR. After extensive expert report exchanges, the Special Master indicated she was not persuaded that the flu vaccine can cause PMR and recommended that Petitioner dismiss her case. Petitioner subsequently filed a motion to dismiss, stating that proceeding further would be unreasonable. The Special Master granted the motion, dismissing the petition. The decision noted that to receive compensation, a petitioner must prove either a Table Injury or that the vaccine actually caused the injury, supported by medical records or expert opinion, neither of which was sufficiently established here.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_18-vv-00753-0
Date issued/filed: 2021-12-03
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 10/5/2021) regarding 44 DECISION Dismissing Petition. Signed by Special Master Katherine E. Oler. (sl) Service on parties made.
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Case 1:18-vv-00753-UNJ Document 48 Filed 12/03/21 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-753V
(Unpublished)
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PATRICIA GAUTHIER, * Special Master Katherine E. Oler
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Petitioner, *
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v. Filed: October 5, 2021
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SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Petitioner’s Motion for a Decision;
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Dismissal of Petition; Vaccine Act.
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Respondent.
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Amy Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner
Debra Begley, U.S. Department of Justice, Washington, DC, for Respondent
DECISION DISMISSING PETITION1
I. Procedural History
On May 29, 2018, Patricia Gauthier (“Petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program,2 alleging that she developed polymyalgia
rheumatica (“PMR”) from the influenza vaccination she received on October 27, 2015. Pet. at 1,
ECF No. 1. Petitioner filed statements of completion on May 31, 2018 and July 30, 2018. ECF
Nos. 7, 12.
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
days within which to request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).

Case 1:18-vv-00753-UNJ Document 48 Filed 12/03/21 Page 2 of 3
On April 15, 2019, Respondent filed a Rule 4(c) Report stating that this case is not
appropriate for compensation pursuant to the Vaccine Act. Resp’t’s Rep. at 2, ECF No. 17. More
specifically, Respondent stated that
[P]etitioner has not provided evidence that satisfies her burden under Althen.
Petitioner has not offered the medical opinion of a qualified expert showing that
the flu vaccine can cause her alleged injury, and that it did so in this instance. Nor
do the medical records provide evidence sufficient to meet petitioner’s burden of
proving the prima facie elements of her claim. Most notably, none of petitioner’s
treating physicians ever attributed her PMR to her vaccination.
Id. at 6-7.
On August 21, 2019, Petitioner filed an expert report written by Dr. Eric Gershwin. Ex. 11.
On January 2, 2020, Respondent filed an expert report written by Dr. Mehrdad Matloubian. Ex. A.
On February 4, 2020, Petitioner filed a supplemental expert report from Dr. Gershwin. Ex. 13. On
July 1, 2020, Respondent filed a responsive expert report from Dr. Matloubian. Ex. D. On October
2, 2020, Petitioner filed another supplemental expert report from Dr. Gershwin. Ex. 15. On March
22, 2021, Respondent filed another responsive report from Dr. Matloubian. Ex. E. On April 20,
2021, Petitioner filed a final expert report from Dr. Gershwin. Ex. 24.
On June 2, 2021, I held a status conference with the parties to discuss my preliminary views
of this case. Scheduling Order on 6/2/2021, ECF No. 39. I informed the parties that I was not
persuaded that the flu vaccine can cause PMR. Id. Petitioner has presented case study evidence to
support her prong one theory. Id. Furthermore, the etiology of PMR is unknown and it does not
appear to be a post-infectious disease. Id. During this status conference, I recommended that
Petitioner dismiss her case. Id. Petitioner’s counsel requested 30 days to file a status report
indicating whether Petitioner would file a motion to dismiss her petition. Id. Petitioner’s counsel
filed several motions for an extension. ECF Nos. 40, 41, 42. I granted those motions. See non-PDF
Orders granting petitioner’s motion for an extension of time on 7/6/2021, 8/4/2021, and 9/2/2021.
Petitioner filed the instant motion to dismiss her claim on October 5, 2021, stating “In these
circumstances, to proceed further would be unreasonable, and would waste the resources of this
Court, Respondent, and the Vaccine Program.” Pet’r’s Mot. at 3, ECF No. 43.
II. Conclusion
To receive compensation in the Vaccine Program, a petitioner must prove either (1) that
she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to her vaccination, or (2) that she suffered an injury that was actually caused by a
vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner may not
receive a Vaccine Program award based solely on her claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent medical expert. § 13(a)(1).
In this case, however, there is insufficient evidence in the record for Petitioner to meet her burden
of proof. Petitioner’s claim therefore cannot succeed and, in accordance with her motion, must be
dismissed. § 11(c)(1)(A).
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Case 1:18-vv-00753-UNJ Document 48 Filed 12/03/21 Page 3 of 3
As such, IT IS ORDERED THAT,
Petitioner’s motion for a decision dismissing her petition is GRANTED and the petition is
hereby DISMISSED. The Clerk shall enter judgment accordingly.
Any questions regarding this Order may be directed to my law clerk, Sydney Lee, by
telephone at 202-357-6347, or by email at Sydney_Lee@cfc.uscourts.gov.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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