VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00254
Package ID: USCOURTS-cofc-1_19-vv-00254
Petitioner: Mikayla Luzecky
Filed: 2019-02-14
Decided: 2020-11-12
Vaccine: varicella
Vaccination date: 2011-08-23
Condition: disseminated varicella vaccine-strain viral disease and vaccination cerebellitis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Mikayla Luzecky alleged that a varicella vaccination received on August 23, 2011, caused her to develop disseminated varicella vaccine-strain viral disease and vaccination cerebellitis. She filed her petition on February 14, 2019, alleging symptoms of fatigue and leg weakness within weeks of the vaccination. Ms. Luzecky initially sought compensation for an on-Table condition. The Secretary of Health and Human Services opposed compensation, arguing that Ms. Luzecky had not established a diagnosis of disseminated varicella vaccine-strain viral disease. While the case survived an initial motion to dismiss, Ms. Luzecky was unable to obtain a supportive expert opinion to establish her diagnosis. Consequently, she moved for a decision dismissing her petition, conceding that she would be unable to prove entitlement to compensation. The court granted her motion, dismissing the case due to the lack of a medical opinion to support the diagnosis and the statute of limitations barring the claim, as the petition was filed more than 36 months after the onset of symptoms.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00254-0
Date issued/filed: 2020-11-12
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 10/16/2020) regarding 51 DECISION of Special Master. Signed by Special Master Christian J. Moran. (abs) Service on parties made.
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Case 1:19-vv-00254-UNJ Document 52 Filed 11/12/20 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
MIKAYLA LUZECKY, *
* No. 19-254V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 16, 2020
*
SECRETARY OF HEALTH * Entitlement, dismissal, disseminated
AND HUMAN SERVICES, * varicella vaccine-strain viral disease
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Robert J. Binstock, Reich & Binstock LLP, Houston, TX, for petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Mikayla Luzecky alleged a Table claim that a varicella vaccination she
received on August 23, 2011, caused her to develop (1) disseminated varicella
vaccine-strain viral disease and (2) vaccination cerebellitis. Pet., filed Feb. 14,
2019, Preamble. On September 8, 2020, Ms. Luzecky moved for a decision
dismissing her petition. This motion is granted and her petition is dismissed.
I. Procedural History
Ms. Luzecky filed a petition with some medical records. Ms. Luzecky
alleged that she received the varicella vaccination on August 23, 2011. Pet. ¶ 2.
She further alleged that she developed fatigue and leg weakness “within weeks” of
1 The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website
(https://www.uscfc.uscourts.gov/aggregator/sources/7). Once posted, anyone can access this
decision via the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a
motion proposing redaction of medical information or other information described in 42 U.S.C. §
300aa-12(d)(4). Any redactions ordered by the special master will be reflected in the document
posted on the website.

Case 1:19-vv-00254-UNJ Document 52 Filed 11/12/20 Page 2 of 5
the vaccination. Id. ¶ 4. She sought compensation for an on-Table condition,
which the petition labels as “post-vaccination syndrome and vaccination
cerebellitis.” Id. at preamble. She also more directly asserted that she “suffers
from disseminated varicella vaccine-strain viral disease.” Id. ¶ 23.
During an initial status conference, Ms. Luzecky was ordered to provide
additional medical records and advised that establishing her diagnosis of
disseminated varicella vaccine-strain viral disease would be a key issue. See 42
C.F.R. § 100.3(c)(11). Order, issued Mar. 21, 2019. On May 7, 2019, Ms.
Luzecky submitted her remaining medical records and a statement of completion.
On June 14, 2019, the Secretary filed his Rule 4 report opposing
compensation and concurrently moved to dismiss the case. In his report, the
Secretary argued that Ms. Luzecky had not established a diagnosis of disseminated
varicella vaccine-strain viral disease. Resp’t’s Rep. at 9-13. Because Ms. Luzecky
could not establish the diagnosis listed on the Table, the Secretary asserted that Ms.
Luzecky could not take advantage of the look-back provision that would allow her
petition to be considered as timely filed as opposed to being barred by the standard
three-year statute of limitations. Id.
After correcting some filing formalities, Ms. Luzecky filed a response to the
Secretary’s motion to dismiss arguing that she did satisfy the definition of
disseminated varicella vaccine-strain viral disease. Pet’r’s Resp., filed Sept. 27,
2019, at 2-6. The Secretary filed a reply. Resp’t’s Reply, filed Sept. 16, 2019.2
On October 28, 2019, the undersigned denied the Secretary’s motion to
dismiss. Because all facts and reasonable inferences are drawn in favor of Ms.
Luzecky for a motion to dismiss, the undersigned found that Ms. Luzecky had
identified enough facts in the medical records, when construed in her favor, to
support the diagnosis of disseminated varicella vaccine-strain viral disease.
Looking forward, the undersigned noted that the current evidence would not be
sufficient for a ruling in Ms. Luzecky’s favor on entitlement. The undersigned
encouraged Ms. Luzecky to obtain a supportive expert opinion and issued
instructions to guide a report.
On December 26, 2019, Ms. Luzecky identified her expert as Dr. Nizar
Souayah and requested additional time to file a report. Ms. Luzecky was granted
2 The Secretary filed a reply after one of Ms. Luzecky’s earlier responses that was substantively
the same as her final response. The Secretary was afforded the opportunity to file an amended
reply after Ms. Luzkecy’s final response, but he did not do so. Order, issued Sept. 16, 2019.
2

Case 1:19-vv-00254-UNJ Document 52 Filed 11/12/20 Page 3 of 5
additional time to file an expert report. After receiving additional time, Ms.
Luzecky requested more time for Dr. Souayah to complete a report and stated that
she would be retaining another expert to support her claim. Pet’r’s Mot., filed
Mar. 13, 2020. Ms. Luzecky was granted additional time. After failing to submit
an expert report by the due date or move for an extension of time, Ms. Luzecky
was ordered to advise whether she would be filing an expert report from Dr.
Souayah. Order, issued May 20, 2020.
On May 29, 2020, Ms. Luzkecy’s counsel, Robert Binstock, moved for leave
to withdraw. Mr. Binstock was ordered to file an affidavit in support of the motion
to withdraw. Order, issued June 2, 2020.
On June 30, 2020, the Secretary moved for an order to show cause. The
Secretary argued that Ms. Luzecky could not establish her diagnosis and continue
her case without a medical opinion. Because Ms. Luzecky had not yet been able to
submit a supportive expert report, the Secretary asserted that Ms. Luzkecy’s
petition should be dismissed. Mr. Binstock filed an affidavit from Ms. Luzecky in
support of his motion to withdraw. Pet’r’s Aff., filed July 2, 2020.
On July 7, 2020, the undersigned issued an order to show cause. The
undersigned noted that Ms. Luzecky was obligated to submit an expert opinion in
support of her diagnosis regardless of whether Mr. Binstock continued to represent
her.
On September 8, 2020, still represented by Attorney Binstock, Ms. Luzecky
moved for a decision dismissing her petition. Ms. Luzecky stated that the
Secretary did not oppose the motion but reserved his right to question the good
faith and reasonable basis of this claim in regard to any motion for attorneys’ fees
and cost. This matter is now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that petitioner suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
petitioner’s vaccinations, or 2) that petitioner suffered an injury that was actually
caused or significantly aggravated by a vaccine. See 42 U.S.C. §§ 300aa—
13(a)(1)(A) and 42 U.S.C. §§ 300aa—11(c)(1). Under the Act, a petitioner may
not be given a Program award based solely on petitioner’s claims alone. Rather,
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Case 1:19-vv-00254-UNJ Document 52 Filed 11/12/20 Page 4 of 5
the petition must be supported by either medical records or by the opinion of a
competent physician. 42 U.S.C. § 300aa—13(a)(1).
In her petition, Ms. Luzecky alleged a Table claim that a varicella vaccine
caused her to develop disseminated varicella vaccine-strain viral disease. Pet. ¶ 23.
However, while this allegation was sufficient to survive a motion to dismiss, Ms.
Luzecky can no longer rely upon allegations. She was required to obtain an expert
report. See Waterman v. Sec’y of Health & Human Servs., 123 Fed. Cl. 564, 574
(2015) (citing cases). Ms. Luzecky was on notice since the October 28, 2019 order
that she needed an expert opinion to establish her diagnosis and continue her case.
Ms. Luzecky was unable to retain an expert to provide an opinion. In her motion
to dismiss, Ms. Luzecky conceded that “she will be unable to prove that she is
entitled to compensation in the Vaccine Program.” Pet’r’s Mot., filed Sept. 8,
2020. Ms. Luzecky has not met her burden of establishing that she suffered
disseminated varicella-strain viral disease.
The finding that Ms. Luzecky has not presented preponderant evidence that
she suffered disseminated varicella-strain viral disease carries consequences for the
statute of limitations. The Vaccine Act requires that petitions be filed no more
than “36 months after the date of the occurrence of the first symptom or
manifestation of onset.” 42 U.S.C. § 300aa—16 (a)(2). Because Ms. Luzecky’s
February 14, 2019 petition was filed more than 36 months after her first symptom
in 2011, she had relied on the look-back provision, 42 U.S.C. § 300aa-16(b), that
allows petitions to be filed no later than two years after the effective date of a
revision to the Vaccine Injury Table. The revision of the Vaccine Injury Table to
include disseminated varicella vaccine-strain viral disease as an injury for the
varicella vaccine was effective on March 21, 2017. National Vaccine Injury
Compensation Program: Revisions to the Vaccine Injury Table; Delay of Effective
Date, 82 Fed. Reg. 11321 (Feb. 22, 2017). But, because Ms. Luzecky has not
established the prerequisite diagnosis, Ms. Luzecky cannot use the look-back
provision to prevent the statute of limitations from barring her on-Table claim.
A similar analysis for any off-Table claim also results in dismissal. To the
extent that Ms. Luzecky is alleging any off-Table injury, she was also required to
present either a medical report or opinion. 42 U.S.C. § 300aa—13(a)(1). She has
not. In addition, Ms. Luzecky has not justified her submission of any off-Table
claim outside of the statute of limitations.
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Case 1:19-vv-00254-UNJ Document 52 Filed 11/12/20 Page 5 of 5
In light of Ms. Luzecky’s concession that this case is not compensable, the
absence of a supportive expert opinion, and a review of the entire record, the
undersigned finds that Ms. Luzecky has not established that she is entitled to
compensation.
Thus, the Motion for Decision is GRANTED, and this case is DISMISSED
for two overlapping reasons: (1) the lack of support from a medical record or
opinion and (2) the statute of limitations. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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