Patricia Lopez v. HHS - Influenza, shoulder injury related to vaccine administration (SIRVA) (2020)

Patricia Lopez, born January 4, 1965, filed a petition on February 27, 2020, alleging that she received an influenza vaccination on September 15, 2015, and subsequently developed Shoulder Injury Related to Vaccine Administration (SIRVA). The petition was filed beyond the statute of limitations.

Ms. Lopez's initial petition in a prior case, docketed as 17-384V and filed on March 20, 2017, with attorney Omar Rosales, alleged that the flu vaccination caused dizziness, anxiety disorder, and depression.

No shoulder injury was alleged in that initial petition, and no medical records were filed. During a status conference on March 30, 2017, Special Master Hastings informed Mr.

Rosales that cases alleging conditions not on the Vaccine Injury Table would require an expert report to establish causation. The case was stayed to allow investigation.

Subsequently, Special Master Hastings directed Mr. Rosales to advance eight specific cases, including Ms.

Lopez's, and to file amended petitions and all medical records by June 26, 2017. In a status conference on June 21, 2017, Special Master Hastings questioned the basis for SIRVA claims when medical records did not clearly indicate such injuries, noting that SIRVA symptoms are typically evident in medical records.

Mr. Rosales asserted that his clients were being treated unfairly due to their socioeconomic and ethnic background, which Special Master Hastings rejected, emphasizing the need for proof of a vaccine-caused injury lasting six months or longer.

Mr. Rosales agreed to obtain expert reports.

On July 10, 2017, Ms. Lopez filed medical records and an amended petition alleging SIRVA.

Special Master Hastings ordered Ms. Lopez to obtain an expert report opining on a specific vaccine-caused injury by August 11, 2017, warning that failure to do so would result in dismissal.

On August 14, 2017, without filing an expert report in that case, Mr. Rosales filed a notice of voluntary dismissal.

Ms. Lopez later obtained a report from Dr.

Mark Levin, dated July 14, 2017, which was not filed in the prior case. In the current case, filed on February 27, 2020, with attorney Christopher Phillippe, Ms.

Lopez again alleged SIRVA and sought equitable tolling of the statute of limitations, arguing that the prior requirement for an expert report justified the delay. The Special Master, Christian J.

Moran, reviewed the case, noting that Ms. Lopez's response to an order to show cause did not address the statute of limitations or equitable tolling but instead raised procedural arguments and claims of discriminatory treatment.

Citing the prior decision in Machuca v. Sec’y of Health & Human Servs., the Special Master found that Ms.

Lopez failed to establish diligence or extraordinary circumstances for equitable tolling, as she possessed Dr. Levin's report for months before filing it in the new case.

The Special Master rejected the claims of discriminatory treatment and concluded that the petition was untimely and lacked a basis for equitable tolling. The case was dismissed.