VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-01358 Package ID: USCOURTS-cofc-1_22-vv-01358 Petitioner: Fernando Tapia Filed: 2022-09-19 Decided: 2023-09-06 Vaccine: influenza Vaccination date: 2019-10-15 Condition: arthrus reaction and/or serum sickness, intermittent skin rash, gastrointestinal bleeding leading to severe anemia, congestive heart failure, and sleep disorder Outcome: dismissed Award amount USD: AI-assisted case summary: Fernando Tapia alleged that the influenza vaccine he received on October 15, 2019, caused him to develop an arthrus reaction, serum sickness, intermittent skin rash, gastrointestinal bleeding leading to severe anemia, congestive heart failure, and a sleep disorder. He filed a petition for compensation under the National Vaccine Injury Compensation Program on September 19, 2022. The respondent, the Secretary of Health and Human Services, argued that Mr. Tapia had not alleged any Table injury and had not proven causation-in-fact for his alleged injuries, stating that the claimed injuries were a list of symptoms rather than diagnoses. The Secretary also argued that Mr. Tapia had not shown he suffered from residual effects for more than six months and could not establish any of the Althen prongs. Subsequently, on August 7, 2023, Mr. Tapia moved to dismiss his own petition, stating that an investigation of the facts and science demonstrated he would be unable to prove entitlement to compensation. He understood that a dismissal would result in a judgment against him, which would end all his rights in the Vaccine Program, and he intended to elect to file a civil action instead. The Special Master granted the motion for decision, dismissing the case with prejudice for insufficient proof, as the evidence weighed against a finding that Mr. Tapia suffered from a defined and recognizable injury. The Clerk was ordered to enter judgment accordingly. Theory of causation field: Off-Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_22-vv-01358-0 Date issued/filed: 2023-09-06 Pages: 3 Docket text: PUBLIC DECISION (Originally filed: 08/14/2023) regarding 29 DECISION of Special Master Signed by Special Master Christian J. Moran. (ceo) Service on parties made. -------------------------------------------------------------------------------- Case 1:22-vv-01358-UNJ Document 30 Filed 09/06/23 Page 1 of 3 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * * * * * FERNANDO TAPIA, * No. 22-1358V * Petitioner, * * Special Master Christian J. Moran v. * * Filed: August 14, 2023 SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Timothy William O'Hara, Marvin Firestone MD, JD & Associates, LLP, San Mateo, CA, for petitioner; Matthew Murphy, United States Dep’t of Justice, Washington, D.C., for respondent. UNPUBLISHED DECISION DENYING COMPENSATION1 Fernando Tapia alleged that the influenza vaccine he received on October 15, 2019 caused him to develop an arthrus reaction and/or serum sickness, intermittent skin rash, gastrointestinal bleeding leading to severe anemia, congestive heart failure, and sleep disorder. Pet., filed Sept. 19, 2022, at 1. On August 7, 2023, Mr. Tapia moved for a decision dismissing his petition. I. Procedural History Fernando Tapia filed a petition on September 19, 2022. Mr. Tapia also filed relevant medical records, which were complete on October 26, 2022. The undersigned issued a comprehensive order, directing Mr. Tapia to file his complete employment file, all filings from his Workers’ Compensation case, and gym records from January 1, 2019 through the present. Order, issued Jan. 23, 2023. The order also set the deadlines for the Secretary’s Rule 4(c) Report and the parties’ expert reports. Mr. Tapia completed filing his materials on April 7, 2023. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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), the parties have 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. Any changes will appear in the document posted on the website. Case 1:22-vv-01358-UNJ Document 30 Filed 09/06/23 Page 2 of 3 The Secretary filed his Rule 4(c) Report on April 10, 2023. In the report, the Secretary argued that Mr. Tapia had not alleged any Table injury, and that he had not proven causation-in- fact for his injuries. Resp’t’s Rep. at 5. The Secretary further argued that the claimed injuries were a list of symptoms rather than diagnoses, and that Mr. Tapia had not shown that he suffered from the residual effects or complications of a vaccine-related injury for more than six months. Id. at 6. Finally, the Secretary argued that Mr. Tapia could not establish any of the Althen prongs. Id. at 8. On August 7, 2023, Mr. Tapia filed a motion for a decision dismissing his petition. Mr. Tapia stated that an “an investigation of the facts and science supporting the case has demonstrated to [him] that he will be unable to prove that he is entitled to compensation in the Vaccine Program.” Pet’r’s Mot., filed Aug. 7, 2023 at 1. He “understands that a decision by the Special Master to dismiss his petition will result in judgment against him [and] has been advised that such a judgment will end all his rights in the Vaccine Program.” Id. Mr. Tapia “intends to elect to reject the Vaccine Program judgment against him and elect to file a civil action.” Id. at 2. The Secretary did not file a response to this motion. This matter is now ready for adjudication. II. Analysis To receive compensation under the National Vaccine Injury Compensation Program (hereinafter “the Program”), a petitioner must prove either 1) that the vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 300aa- 13(a)(1). In this case, Mr. Tapia filed medical records and various other records in support of his claim, but nonetheless, wishes to have his claim dismissed and judgment entered against him. Though Mr. Tapia did not cite to a specific rule when filing this motion, the undersigned will construe this as a motion filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary dismissal), given Mr. Tapia’s clear intent that a judgment issue in this case, protecting his right to file a civil action in the future. See Pet’r’s Mot., filed Aug. 7, 2023. To conform to section 12(d)(3), a decision must “include findings of fact and conclusions of law.” Here, although the parties were in the process of presenting arguments, the evidence weighs against a finding that Mr. Tapia suffered from a defined and recognizable injury. See Lombardi v. Sec’y of Health and Human Servs., 656 F.3d 1343, 1353 (Fed. Cir. 2011) (petitioner has “burden to show by a preponderance of the evidence that they suffered from any medically recognized ‘injury,’ not merely a symptom or manifestation of an unknown injury.”). Without a showing that the vaccinee suffered an injury, the remainder of the case becomes moot. See Broekelschen v. Sec’y of Health and Human Servs., 618 F.3d 1339, 1346 (Fed. Cir. 2010). Accordingly, the undersigned is not required to evaluate whether the influenza vaccine can cause the symptoms alleged. 2 Case 1:22-vv-01358-UNJ Document 30 Filed 09/06/23 Page 3 of 3 Thus, the Motion for Decision is GRANTED and this case is DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall enter judgment accordingly. See Vaccine Rule 21(b). IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 3 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_22-vv-01358-cl-extra-10735066 Date issued/filed: 2024-06-10 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268476 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************** FERNANDO TAPIA, * No. 22-1358V * Petitioner, * * Special Master Christian J. Moran v. * * Filed: May 16, 2024 SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * ********************** Timothy William O'Hara, Marvin Firestone MD, JD & Associates, LLP, San Mateo, CA, for petitioner; Traci Patton, United States Dep’t of Justice, Washington, D.C., for respondent. UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 Pursuant to 42 U.S.C. § 300aa-15(e), petitioner has requested a total of $28,309.08 in attorneys’ fees and costs. The undersigned tentatively found that petitioner requested a reasonable amount and was entitled to the full amount requested. The undersigned allowed respondent an opportunity to comment. Respondent did not interpose any objections within the time permitted. Petitioner’s attorney, attorney staff, and expert have requested hourly rates that are consistent with the rates previously awarded. The number of hours is reasonable. Thus, the amount requested is reasonable. 1 The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 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. Petitioner is awarded $28,309.08. This amount shall be made payable as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel, Tim O’Hara. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2 IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 2