VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00045
Package ID: USCOURTS-cofc-1_20-vv-00045
Petitioner: N.Q.
Filed: 2020-01-14
Decided: 2020-12-15
Vaccine: influenza
Vaccination date: 2014-10-06
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Dania Pedraza, on behalf of her minor son N.Q., filed a petition on January 14, 2020, seeking compensation for a shoulder injury related to vaccine administration (SIRVA) allegedly sustained by N.Q. following an influenza vaccination on October 6, 2014. N.Q. was seven years old at the time of the vaccination. Ms. Pedraza alleged that N.Q. developed shoulder problems within 48 hours of receiving the vaccine. The petition was filed well beyond the statute of limitations. The case was before Special Master Christian J. Moran. The respondent was the Secretary of Health and Human Services. The public decision does not name petitioner's counsel for this filing, but Christopher Lee Phillippe of Christopher Lee Phillippe, PC, is listed as counsel for the petitioner. Jennifer L. Reynaud of the United States Department of Justice represented the respondent. The Special Master reviewed the procedural history of a prior case, docketed as 17-384V, filed by N.Q.'s former attorney, Omar Rosales, on March 20, 2017. In that prior case, the initial petition alleged that the flu vaccination caused an anxiety disorder and did not allege a shoulder injury. No exhibits were filed with the initial petition in 17-384V. During a status conference on March 30, 2017, Special Master Hastings discussed with Mr. Rosales the need for an expert report for conditions not listed on the Vaccine Injury Table, which applied to the alleged anxiety disorder. The case was stayed to allow counsel to investigate. An order on April 26, 2017, directed Mr. Rosales to advance eight cases, including Ms. Pedraza's, within 60 days and to file amended petitions and all medical records for cases proceeding. In a subsequent status conference on June 21, 2017, Special Master Hastings questioned the basis for a SIRVA claim, noting the lack of evidence in the medical records and the fact that SIRVA was not alleged in the original petition. Mr. Rosales suggested discriminatory treatment, which Special Master Hastings rejected, emphasizing the need for proof that a vaccine caused an injury lasting six months or longer. Mr. Rosales stated he would obtain expert reports. Ms. Pedraza's counsel represented on June 26, 2017, that an expert report would be provided within 30 days if the court ordered it. On July 10, 2017, Ms. Pedraza filed medical records and an amended petition alleging SIRVA and increased ADHD symptoms due to shoulder pain. Special Master Hastings ordered an expert report by August 11, 2017, stating the case would be dismissed if not filed. On July 17, 2017, a report was obtained from Dr. Mark Levin, a board-certified internist and oncologist. However, on August 14, 2017, Mr. Rosales filed a notice of voluntary dismissal for case 17-384V. In the current case, filed January 14, 2020, with attorney Christopher Phillippe, Ms. Pedraza included Dr. Levin's July 17, 2017 report as an exhibit. The petition requested equitable tolling, arguing that Special Master Hastings had previously required an expert report for a SIRVA claim. Special Master Moran reviewed a similar case, Machuca v. Sec’y of Health & Human Servs., No. 20-18V, which was dismissed on July 17, 2020, for failure to establish diligence or extraordinary circumstances for equitable tolling. In Machuca, the petitioner possessed an expert report for months before filing and did not establish grounds for equitable tolling or discriminatory treatment. Special Master Moran issued an order for Ms. Pedraza to show cause why her case should not be dismissed. Ms. Pedraza responded by arguing that the Secretary should file a motion to dismiss and that the show cause order reflected discriminatory treatment. Special Master Moran found these arguments unpersuasive, noting that Ms. Pedraza cited no authority for the claim that enforcing statutes of limitations constitutes discrimination and did not present individualized arguments distinguishing her case from Machuca. The public decision does not describe the specific symptoms, onset, diagnostic tests, or treatments for N.Q.'s alleged shoulder injury or anxiety, beyond the general allegations of shoulder problems within 48 hours of vaccination and increased ADHD symptoms. The decision also does not detail the specific findings or reasoning of Dr. Levin's report. The case was dismissed because it was filed outside the statute of limitations, and equitable tolling was not deemed appropriate. The public decision does not mention any award amount or annuity terms.

Theory of causation field:
Petitioner Dania Pedraza, on behalf of minor N.Q., alleged Shoulder Injury Related to Vaccine Administration (SIRVA) following an influenza vaccination on October 6, 2014, at age 7. The petition was filed on January 14, 2020, outside the statute of limitations. Petitioner sought equitable tolling, arguing a prior Special Master's order requiring an expert report for SIRVA constituted grounds for tolling. The Special Master, Christian J. Moran, found equitable tolling inappropriate, citing lack of diligence and extraordinary circumstances, as Petitioner possessed an expert report from Dr. Mark Levin (dated July 17, 2017) for months before filing the current petition (January 14, 2020). The prior case (17-384V) was voluntarily dismissed by petitioner's former counsel, Omar Rosales, after being ordered to file an expert report by August 11, 2017, for a SIRVA claim. Petitioner's current counsel is Christopher Lee Phillippe. Respondent is the Secretary of Health and Human Services. The public decision does not detail the specific mechanism of SIRVA or provide expert opinions beyond mentioning Dr. Levin's report was filed. The case was dismissed for failure to meet the statute of limitations and the denial of equitable tolling. No award was made.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00045-0
Date issued/filed: 2020-12-15
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 11/19/2020) regarding 12 DECISION of Special Master. Signed by Special Master Christian J. Moran. (hh) Service on parties made.
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Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
DANIA PEDRAZA, on behalf of *
N.Q., a minor, *
* No. 20-45V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 19, 2020
*
SECRETARY OF HEALTH * Dismissal; show cause; equitable
AND HUMAN SERVICES, * tolling; discriminatory treatment;
* statute of limitations.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Christopher Lee Phillippe, Christopher Lee Phillippe, PC, Brownsville, TX, for
petitioner;
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DISMISSING CASE1
Ms. Pedraza alleges that her child, N.Q., received an influenza vaccination
on October 6, 2014. Pet., filed Jan. 14, 2020, ¶ 4. Ms. Pedraza further alleges that
N.Q. developed shoulder problems within 48 hours of vaccination. Id. ¶ 12. Ms.
Pedraza claims compensation for N.Q.’s shoulder injury related to vaccine
administration (“SIRVA”). Id. ¶ 10.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with 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 appear in the document posted on the website.

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 2 of 9
Ms. Pedraza filed the present action beyond the time permitted by the statute
of limitations. Although given an opportunity to explain why her case should
continue despite its untimeliness, Ms. Pedraza has not presented any persuasive
argument. Thus, the case is dismissed.
Background
Information relevant to Ms. Pedraza’s pending case falls into three
categories: (1) the events that happened to her son, (2) the procedural history in the
first case, and (3) the procedural history in the pending case.
Events for N.Q.
N.Q. was born in 2008. At age 7, he saw his pediatrician, Anil K. Batta, for
behavioral problems and primary care, including common illnesses such as fever
and sore throat. Although Ms. Pedraza was giving her son prescribed medication
for behavioral issues, including ADHD, he remained “very hard to handle at
school.” Exhibit 1 at 4-5 (April 9, 2015). Dr. Batta referred N.Q. to Tropical
Texas Behavioral Health for a psychological evaluation. Id. (Whether N.Q.
received any treatment at Tropical Texas Behavioral Health is not clear as Ms.
Pedraza has neither filed any treatment records nor filed a status report or affidavit
explaining that no records exist. See Resp’t’s Mot. at 4 n.7.)
N.Q. received therapy from Sunshine Rehab, where therapists described
high distractibility, impulsive behavior, aggressive tendencies, and poor
comprehension. Exhibit 1 at 2. These reports continued in 2015. See exhibit 2 at
7, 11.
N.Q. received the flu vaccine that allegedly harmed him on October 6, 2014.
The vaccine was administered into his right arm. Exhibit 1 at 18.
At the next therapy appointment, which was on December 28, 2015, the
therapist documented that he had “high distractibility, excessive energy, impulsive
behaviors, poor safety awareness, and no fear/understanding of possible damages
for self or others.” Exhibit 2 at 17. The therapist assessed N.Q. as suffering from
ADHD, developmental delay, and characteristics of oppositional defiant disorder.
There is no reference in the therapist’s records to shoulder pain or limited range of
motion.
N.Q. saw Dr. Batta on February 10, 2016, which was approximately two
months after the vaccination. Dr. Batta noted ADHD. However, N.Q. was
2

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 3 of 9
otherwise doing well. Exhibit 1 at 19-20. Dr. Batta did not document that N.Q.
had any shoulder problems at this visit.
In 2016, N.Q. saw Dr. Batta, therapists, and a physician’s assistant for a
psychiatric interview. At the end of 2016, N.Q. underwent an EEG, and Rafael
Mimbela, a pediatric neurologist, reviewed the results. Dr. Mimbela determined
that the EEG was abnormal and could predispose him to generalized epilepsy.
Exhibit 4 at 1-2.
Ms. Pedraza has not filed any medical records from after 2016. None of the
medical records filed by petitioner document that N.Q. experienced shoulder pain
or problems with range of motion following vaccination.
Procedural History in 17-384V
Ms. Pedraza filed a petition, docketed as 17-384V, on March 20, 2017.
Pursuant to 42 U.S.C. § 300aa–11(b)(1)(A), Ms. Pedraza filed on behalf of N.Q.,
her minor child. Her attorney was Omar Rosales. Around this time, Mr. Rosales
filed petitions for approximately 28 other people. These cases, including Ms.
Pedraza’s case, were assigned to Special Master Hastings.
Ms. Pedraza’s petition was three pages in length and contained 12
paragraphs. The petition alleged that the October 6, 2014 flu vaccination caused
N.Q. to suffer an anxiety disorder, which Dr. Mimbela diagnosed on February 6,
2015. Pet. ¶¶ 5, 7. Petitioner did not allege that N.Q. sustained a shoulder injury.
Although the petition referenced medical records, Ms. Pedraza did not file any
exhibits with the petition. Thus, at this time, Ms. Pedraza had not filed any
medical records corroborating her claims.
On March 30, 2017, Special Master Hastings conducted a status conference,
which was digitally recorded.2 At the onset, Special Master Hastings informed
Attorney Rosales that he expected to retire at the end of July. First Tr. 7; see also
First Tr. 57. Special Master Hastings discussed that for a case in which the
petitioner was alleging that a flu vaccine caused a condition not listed on the
Vaccine Injury Table, the petitioner would need to get an expert report and Mr.
Rosales agreed that he could submit an expert report. First Tr. 17-22. In the
2 The Secretary filed the transcript from this status conference as part of the appendix to a
motion to dismiss, pages 25-50, in Machuca. Each page of the appendix reproduces four pages
of the miniscript transcript. For example, transcript pages 5-8 are appendix page 26. This
decision cites to specific pages of the transcript as “First Tr.”
3

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 4 of 9
absence of an expert report, Special Master Hastings stated that he would be
inclined to find that all of Mr. Rosales’s cases lacked a reasonable basis. First Tr.
28. Attorney Rosales stated that he would find experts to supplement the
petitioner’s position on causation. First Tr. 30. Special Master Hastings again
counseled that the petitioners had to have some proof of causation. First Tr. 44-
50.3
The order from this status conference was consistent with the oral
statements during the status conference. The order explained that the cases
Attorney Rosales had filed “at first glance, do not include allegations that would be
sufficient to establish entitlement to a Program award or even to establish a
‘reasonable basis’ for the case sufficient to justify an award of attorneys’ fees or
costs for filing the cases.” Order, issued March 30, 2017. Accordingly, Special
Master Hastings stayed the case for 180 days to allow counsel to investigate the
vaccinee’s medical history and to determine whether evidence could support an
allegation that a vaccine harmed the child.
Special Master Hastings subsequently modified the March 30, 2017 order.
Instead of requiring Attorney Rosales to investigate 28 cases in 180 days, Special
Master Hastings directed Attorney Rosales to investigate 8 cases in 60 days. Ms.
Pedraza’s case was one of those eight cases that Special Master Hastings directed
Attorney Rosales to advance. Accordingly, Mr. Rosales was directed to determine
whether he wanted the case to proceed by June 26, 2017. In the cases that were
proceeding, the petitioner was ordered to file an amended petition and all medical
records. Order, issued April 26, 2017.
For two of eight cases Special Master Hastings had advanced in the April
26, 2017 order, Special Master Hastings conducted another status conference on
June 21, 2017.4 In those cases, before the status conference, Mr. Rosales amended
the petition and included an allegation of SIRVA.5 The topics discussed during the
status conference implicate and foreshadow some of the issues raised in the current
3 It appears that in all of the 28 cases assigned to Special Master Hastings, the petitions
sought compensation for injuries not listed in the Vaccine Table. Thus, the petitioners would be
required to establish causation-in-fact.
4 The transcript for the June 21, 2017 status conference is cited by transcript page as
“Second Tr.”
5 Effective March 21, 2017, the Secretary amended the Vaccine Injury Table to associate
SIRVA with vaccines. 82 Fed. Reg. 113201 (Feb. 22, 2017).
4

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 5 of 9
case. Thus, extensive quotations follow. Special Master Hastings questioned the
basis for a SIRVA claim:
But there was absolutely no evidence in either record that
the Petitioner ever suffered from SIRVA. And SIRVA is
a pretty distinctive thing . . .
I find it really highly strange that SIRVA wasn’t alleged
in the original petition, either one, and then was just
alleged in the -- in the amended petition in each of those
cases. And then when I looked at the records, there was
just no -- still no -- no record to indicate that they ever
had any signs of SIRVA or that any of their other
symptoms were ever judged to be vaccine-caused by a
physician.
Second Tr. 4. Special Master Hastings elaborated that SIRVA cases are based
upon medical records:
You [Mr. Rosales] alleged SIRVA but there’s no
evidence of it. . . . [Shoulder injuries] are really easy to
see in the medical records themselves. The person comes
back a day later, two days later, and their shoulder is all
swollen up and they can’t move it. That’s very – those
are almost very clear from the medical records. That
doesn’t seem to be the case in either [of the two cases
under discussion] unless I missed some medical records.
Second Tr. 12.
Partially in response, Mr. Rosales commented that Special Master Hastings
was not evaluating the cases fairly. He stated:
[I]t feels like you’re placing my clients, you know, under
a different microscope. And I’m just asking that my
clients be treated fairly, judge. Just because they’re poor,
just because they’re indigent and Hispanic doesn’t mean
they should be treated differently, Your Honor.
Second Tr. 16.
5

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 6 of 9
Special Master Hastings responded, outlining what petitioners need to
establish.
Well, I’m sorry I hurt your feelings, and I can guarantee
you that – that there has been no discrimination. It has
nothing to do with them being Hispanic. There’s no –
there’s no discrimination. I certainly reject that – that
suggestion, too.
But, you’re going to have to – you need – you need some
proof that a vaccine caused an injury . . . and the injury
lasted six months or longer.
Second Tr. 16. In direct response, Mr. Rosales stated:
[W]e will get the expert reports for those cases you
identified, Your Honor, and I’ve assembled all the
medical records, so it paints a much better picture. We’ll
review those things, Your Honor, absolutely.
Second Tr. 16.
Special Master Hastings accepted Mr. Rosales’s effort to review the cases.
Special Master Hastings stated:
So I encourage you to take – to take a look at your 28
cases and – and punt on the ones that don’t have – that
you can’t find any real connection. And if there’s any
that you can find a real connection, then concentrate on
litigating those.
Second Tr. 18.
Within a week of the June 21, 2017 status conference, Mr. Rosales filed a
status report in Ms. Pedraza’s case, announcing her intention to file medical
records, to amend the petition to allege SIRVA, and possibly to obtain an expert.
Given Ms. Pedraza’s later argument regarding equitable tolling, her representations
regarding an expert are important to document. She stated: “After further review,
if the Court determines that an Expert report is necessary to substantiate and
augment the claim, Petitioner’s counsel will hire an expert and provide the Court
with the expert’s opinion within 30 days of the Court’s order.” Pet’r’s Status Rep.,
filed June 26, 2017, ¶ 5.
6

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 7 of 9
Special Master Hastings found that the June 26, 2017 status report, which
announced an intention to file documents, did not comply with the April 26, 2017
order, which required the filing of documents. However, Special Master Hastings
allowed petitioner until July 10, 2017, to file the required documents.
On July 10, 2017, Ms. Pedraza filed a set of medical records (exhibits 1-9).
CM/ECF 15. On that same day, Ms. Pedraza filed an amended petition. The
amended petition, which is not a model of clarity, recognized that N.Q. had shown
symptoms of ADHD before the October 6, 2014 vaccination. Am. Pet. ¶ 5. It
states N.Q. “developed SIRVA” and, due to the vaccination and SIRVA, N.Q.
“experienced sharp stabbing pain, tingling, difficulty sleeping on the affected side,
discomfort, and anxiety.” Id. ¶ 9. In addition to alleging SIRVA, the amended
petition maintained that N.Q. “was diagnosed with increased symptoms of ADHA
due to the severe pain to her shoulder caused by the vaccination. The diagnosis
occurred on 2/6/15.” Id. ¶ 8 (citing exhibit 5 at 5).
Special Master Hastings directed Ms. Pedraza to obtain a report from a
reputable and qualified medical doctor opining that N.Q. “suffered a specific
vaccine-caused injury, and explaining such opinion in detail.” Order, issued July
11, 2017. This order set the deadline as August 11, 2017. The order continued
that if counsel did not file such an expert report, “the case will be dismissed for
failure to prove a vaccine-caused injury.” Id.
The recounting of the procedural history of case 17-384V must pause.
Information from the pending case (docket 20-45V) shows that Ms. Pedraza
obtained a report from Mark Levin, a doctor board-certified in internal medicine
and oncology. Dr. Levin’s report is dated July 17, 2017.
Without filing Dr. Levin’s report in case 17-384V, Attorney Rosales
submitted a one-sentence document on August 14, 2017. This document states,
“Petitioner files this notice of voluntary dismissal in accordance with Rule
21(a)(1)(A).”6 Pet’r’s Notice.
In accord with this notice, on August 14, 2017, Special Master Hastings
issued an order concluding proceedings in case number 17-384V. In accordance
with Rule 21(a)(1)(A), Special Master Hastings directed the Clerk not to enter
Judgment. Ms. Pedraza did not seek attorneys’ fees or costs. Although not noted
6 For Voluntary Dismissals, Vaccine Rule 21(a)(1) provides: “Petitioner may dismiss the
petition without order of the special master of the court by filing:
(A) a notice of dismissal at any time before service of respondent’s report.”
7

Case 1:20-vv-00045-UNJ Document 13 Filed 12/15/20 Page 8 of 9
in the docket, Special Master Hastings retired from the Office of Special Masters
in September 2017.
Procedural History in 20-45V
Represented by Attorney Christopher Phillippe, Ms. Pedraza filed the
pending case on January 14, 2020. With her petition, Ms. Pedraza filed 11
exhibits. The first nine exhibits match the nine exhibits filed in the previous case.
Exhibit 10 is Ms. Pedraza’s affidavit, signed January 10, 2020. Exhibit 11 is the
July 17, 2017 report from Dr. Levin.
The January 14, 2020 petition begins with a recitation of events in N.Q.’s
life and the recitation in paragraphs 1-15 is similar to (but not identical to) the
recitation of events in the July 10, 2017 amended petition from the previous case.
The January 14, 2020 petition then adds a request for equitable tolling on the basis
that Special Master Hastings had previously required an expert report for a SIRVA
claim. See Pet. ¶¶ 16-19.
The undersigned discussed how to resolve the equitable tolling issue in a
status conference held on March 3, 2020. The undersigned stayed proceedings in
this case to allow the parties to make arguments in a similar case, Machuca v.
Sec’y of Health & Human Servs., No. 20-18V. Order, issued March 3, 2020.
After the parties submitted arguments, the undersigned dismissed Machuca
in a decision, issued July 17, 2020. Machuca v. Sec’y of Health & Human Servs.,
No. 20-18V, 2020 WL 4670877 (Fed. Cl. Spec. Mstr. July 17, 2020). The critical
issue in Machuca was whether the petitioner could take advantage of the doctrine
of equitable tolling to proceed on an action that the statute of limitations would
otherwise bar. The undersigned rejected the petitioner’s reliance on equitable
tolling because she failed to establish diligence nor extraordinary circumstances.
Petitioner could not establish diligence because she possessed Dr. Levin’s report
for months before she filed it. Petitioner could not establish extraordinary
circumstances for multiple reasons including (1) the requirement to file an expert
report was not burdensome because petitioner had a report from Dr. Levin, (2)
given the factual circumstances, an expert report was statutorily required, (3)
petitioner’s attorney took no steps to oppose Special Master Hastings’s order for
petitioner to file an expert report, and (4) petitioner did not present any basis for
concluding that Special Master Hastings discriminated against her on the basis of
her national origin. Ms. Machuca, whom Attorney Rosales represented, did not
file a motion for review.
8

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In the present case, the undersigned issued an order for Ms. Pedraza to show
cause as to why her case should not be dismissed after Machuca. Ms. Pedraza filed
a response to the order to show cause on August 24, 2020.
Analysis
Here, Ms. Pedraza’s response to the order to show cause does not assert any
argument regarding the statute of limitations or equitable tolling. Instead, Ms.
Pedraza presents a procedural argument, maintaining that the Secretary should first
file a motion to dismiss and/or a report pursuant to Vaccine Rule 4. Ms. Pedraza
adds that a requirement that she respond to an order to show cause reflects
discriminatory treatment of her based upon her national origin.
Ms. Pedraza’s arguments are unpersuasive for several reasons. Ms. Pedraza
has cited no authority that suggests that enforcement of statutes of limitations can
amount to unconstitutional discrimination. Further, she does not argue that she
was not aware of the basis for potential dismissal through her attorney’s
participation in Machuca. Ms. Pedraza also did not present any individualized
argument based upon the evidence of her case that would distinguish her case from
Machuca.
Conclusion
Ms. Pedraza filed the petition outside of the time permitted by the statute of
limitations. She also has not shown that equitable tolling is appropriate based upon
the evidence. The Clerk’s Office is instructed to issue judgment in accord with this
decision unless a timely motion for review is filed.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
9