VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00188
Package ID: USCOURTS-cofc-1_19-vv-00188
Petitioner: S.W.
Filed: 2019-02-01
Decided: 2020-11-09
Vaccine: HPV
Vaccination date: 2016-02-01
Condition: postural orthostatic tachycardia syndrome (POTS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Tanja and Scott Wagner, on behalf of their minor child S.W., filed a claim on February 1, 2019, alleging that S.W. suffered from postural orthostatic tachycardia syndrome (POTS) as a result of her third Gardasil Human Papillomavirus (HPV) vaccination administered on February 1, 2016. The case was initially assigned to Special Master Oler and later reassigned to Special Master Daniel T. Horner. Petitioners filed supportive medical records and a Statement of Completion. Respondent requested additional medical records. Petitioners subsequently filed an expert report from Dr. Mitchell Miglis. On September 28, 2020, petitioners filed a motion to dismiss their petition, stating their desire to opt out of the Vaccine Program to pursue an action against Merck directly in district court. Petitioners acknowledged that this dismissal would be an adjudication on the merits and would end their rights in the Vaccine Program. Respondent requested dismissal with prejudice. Special Master Horner noted that petitioners had not alleged a "Table Injury" and that the record did not contain preponderant evidence indicating the injury was vaccine-caused. The Special Master also noted that prior decisions had rejected causal theories linking the HPV vaccine to POTS, referencing cases such as Johnson v. Sec’y of Health & Human Servs., Combs v. Sec’y of Health & Human Servs., L.A.M. v. Sec’y of Health & Human Servs., and Turkopolis v. Sec’y of Health & Human Servs. The Special Master also noted that Dr. Miglis, who provided an opinion in this case, had his theory found unpersuasive in Balasco v. Secretary of Health & Human Services. Consequently, Special Master Horner granted the petitioners' motion to dismiss, dismissing the petition with prejudice for insufficient proof. The clerk of the court was directed to enter judgment.

Theory of causation field:
Petitioners alleged that S.W. suffered from postural orthostatic tachycardia syndrome (POTS) as a result of her third Gardasil HPV vaccination on February 1, 2016. The petition was filed on February 1, 2019. Petitioners sought to opt out of the Vaccine Program to pursue an action against Merck directly in district court, filing a motion to dismiss their petition. Special Master Daniel T. Horner found that petitioners had not alleged a "Table Injury" and that the record did not contain preponderant evidence indicating the injury was vaccine-caused. The Special Master noted that prior decisions had rejected causal theories linking the HPV vaccine to POTS, citing Johnson, Combs, L.A.M., and Turkopolis. The Special Master also noted that the petitioners' expert, Dr. Mitchell Miglis, had his theory found unpersuasive in Balasco. The petition was dismissed with prejudice for insufficient proof. Petitioners were represented by Andrew Donald Downing, and respondent was represented by Debra A. Filteau Begley. The decision was issued on November 9, 2020.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_19-vv-00188-0
Date issued/filed: 2020-11-09
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 10/14/2020) regarding 44 DECISION of Special Master. Signed by Special Master Daniel T. Horner. (et) Service on parties made.
--------------------------------------------------------------------------------
Case 1:19-vv-00188-UNJ Document 46 Filed 11/09/20 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-188V
Filed: October 14, 2020
UNPUBLISHED
Special Master Horner
TANJA WAGNER and SCOTT
WAGNER, on behalf of their Minor
Child, S.W.,
Petitioners’ Motion for Decision
Dismissing Petition
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On February 1, 2019, petitioners filed a claim, on behalf of their minor child,
S.W., under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34
(2012), alleging that S.W. suffered an adverse reaction, including postural orthostatic
tachycardia syndrome (“POTS”), as a result of her third Gardasil Human papillomavirus
(HPV) vaccination administered on February 1, 2016. (ECF No. 1.)
I. Procedural History
This case was initially assigned to Special Master Oler. (ECF No. 4.) From
March 29, 2019 to August 7, 2019, petitioners filed supportive medical records and a
Statement of Completion. (ECF Nos. 7, 9, 10, 13, 16, 17.) On August 27, 2019, this
case was reassigned to my docket. (ECF No. 19.)
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.

Case 1:19-vv-00188-UNJ Document 46 Filed 11/09/20 Page 2 of 3
Thereafter, respondent requested, in a status report, additional medical records.
(ECF No. 22.) Petitioners filed additional records and requested further additional time
to file any outstanding records and an amended Statement of Completion. (ECF No.
37.) However, instead of filing further medical records, on September 20, 2020,
petitioners filed an expert report from Dr. Mitchell Miglis to support their claim. (ECF
No. 38-40.)
Subsequently, on September 28, 2020, petitioners filed a motion for a decision
dismissing the petition. (ECF No. 41.) Petitioners indicated that petitioners “have made
the choice that they would like to opt out of the Vaccine Program in advance of the
Court ruling on entitlement. They wish to pursue an action in district court against Merck
directly. This choice should not be viewed in any way that Petitioners do not believe in
the merits of their claim or that S.W.’s injuries are not a result of Gardasil.” (ECF No.
41, p. 3.) Petitioners “do intend to protect their rights to file a civil action.” (Id.) In
response, respondent filed his Rule 4(c) report, recommending against compensation.
(ECF No. 42.) Additionally, respondent requested that the special master enter a
decision denying compensation and dismissing the petition. (Id. at 12.)
Petitioners acknowledge in their motion that this dismissal will be an adjudication
on the merits (“Petitioner understands that the Special Master in [the] Dismissal
Decision must make basic findings of fact and conclusions of law consistent with 42
U.S.C. § 300aa-12(d)(3)(A)(1)”) and will result in a final judgment (“They have been
advised that such a judgment will end all of her rights in the Vaccine Program”). (ECF
No. 41, p. 3.) Moreover, similar motions in other cases have resulted in dismissal with
prejudice. McElerney v. Sec’y of Health & Human Servs., No. 16-1540V, 2020 WL
4938429 (Fed. Cl. Spec. Mstr. July 28, 2020); Otto v. Sec’y of Health & Human Servs.,
No. 16-1144V, 2020 WL 4719285 (Fed. Cl. Spec. Mstr. June 17, 2020).
II. Discussion
To receive compensation in the Vaccine Program, petitioners must prove either
(1) that S.W. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury
Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was
actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy their
burden of proving causation in fact, petitioners must show by preponderant evidence:
“(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of a proximate temporal relationship between vaccination and
injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). No “Table Injury” was alleged in this case. Nor did an examination of the record
uncover any evidence that petitioner suffered a “Table Injury.” Further, the record does
not contain preponderant evidence indicating that S.W.’s alleged injury was vaccine-
caused or in any way vaccine-related.
Under the Act, petitioners may not be given a Program award based solely on
the petitioners’ claims alone. Rather, the petition must be supported by either medical
2

Case 1:19-vv-00188-UNJ Document 46 Filed 11/09/20 Page 3 of 3
records or by the opinion of a competent physician. § 13(a)(1). Although petitioners
offered a medical opinion from Dr. Miglis, the medical opinion alone did not provide
persuasive evidence supporting a finding of entitlement. Nor did petitioners present a
reliable medical theory causally connecting S.W.’s HPV vaccination to POTS.
Notably, there have been a number of prior decisions within the Vaccine Program
addressing and rejecting causal theories linking the HPV vaccine to POTS and/or
autonomic nervous system dysfunction. See, e.g., Johnson v. Sec’y of Health & Human
Servs., No. 14-254V, 2018 WL 2051760 (Fed. Cl. Spec. Mstr. Mar. 23, 2018); Combs v.
Sec’y of Health & Human Servs., No.14-878V, 2018 WL 1581672 (Fed. Cl. Spec. Mstr.
Feb. 15, 2018); L.A.M. v. Sec’y of Health & Human Servs., No. 11-852V, 2017 WL
527576 (Fed. Cl. Spec. Mstr. Jan. 31, 2017); and Turkopolis v. Sec’y of Health &
Human Servs., No. 10-351V, 2014 WL 2872215 (Fed. Cl. Spec. Mstr. May 30, 2014).
In Balasco v. Secretary of Health & Human Services, I previously found such a theory
unpersuasive in another case based in part on an opinion provided by Dr. Miglis, who
also opines in this case. No. 17-215V, 2020 WL 1240917 (Fed. Cl. Spec. Mstr. Feb. 14,
2020). Petitioners have not provided any persuasive evidence that distinguishes this
theory.
Therefore, I do not find that petitioners have met their burden in this case.
III. Conclusion
Petitioners’ Motion for Decision Dismissing the Petition is GRANTED. This
petition is DISMISSED with prejudice for insufficient proof. The clerk of the court is
directed to enter judgment in accordance with this decision.2
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3