Judges: Laura D Millman
Filed: Sep. 25, 2017
Latest Update: Mar. 03, 2020
Summary: IGINAL REISSUED FOR PUBLICATION SEP 25 2017 OSM U.S. COURT OF FEDERAL CLAIMS 3Jn tbe Wniteb ~tates ~ourt of jfeberal ~laims OFFICE OF SPECIAL MASTERS No. 17-02V Filed: August 31, 2017 Not to be Publis hed. AUG 3 1 20'7 ************************************* JAIME SANCHEZ, * OSM US COURTOF * FEDEAAL CLAIMS Petitioner, * * V. * Influenza ("flu") vaccine; * migraine headaches; petitioner's SECRETARY OF HEALTH * motion to dismi ss granted AND HUMAN SERVICES, * * Respondent. * * **********************
Summary: IGINAL REISSUED FOR PUBLICATION SEP 25 2017 OSM U.S. COURT OF FEDERAL CLAIMS 3Jn tbe Wniteb ~tates ~ourt of jfeberal ~laims OFFICE OF SPECIAL MASTERS No. 17-02V Filed: August 31, 2017 Not to be Publis hed. AUG 3 1 20'7 ************************************* JAIME SANCHEZ, * OSM US COURTOF * FEDEAAL CLAIMS Petitioner, * * V. * Influenza ("flu") vaccine; * migraine headaches; petitioner's SECRETARY OF HEALTH * motion to dismi ss granted AND HUMAN SERVICES, * * Respondent. * * ***********************..
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IGINAL REISSUED FOR PUBLICATION
SEP 25 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe Wniteb ~tates ~ourt of jfeberal ~laims
OFFICE OF SPECIAL MASTERS
No. 17-02V
Filed: August 31, 2017
Not to be Publis hed.
AUG 3 1 20'7
*************************************
JAIME SANCHEZ, * OSM
US COURTOF
* FEDEAAL CLAIMS
Petitioner, *
*
V. * Influenza ("flu") vaccine;
* migraine headaches; petitioner's
SECRETARY OF HEALTH * motion to dismi ss granted
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Jaime Sanchez, West Covina, CA, for petitioner (prose).
Traci R. Patton, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION 1
On January 3, 2017 , petitioner filed a petition under the National Chi ldhood Vaccine
Injury Act, 42 U.S.C. § 300aa- J 0-34 (20 12), a lleging that influenza ("flu") vaccine he received
on January 6, 2014 caused him migraine headaches and cold-like symptoms (runny nose, stuffy
nose, congestion, and aches and pains). Pet. at 1.
On April 4, 2017, the undersigned held the first telephonic status conference in this case
during which petitioner said he was going to look for an attorney.
On August 30, 2017, petitioner telephoned the undersigned 's law clerk and moved to
1
Because this unpubli shed decision contains a reasoned explanation for the special master's action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims' website, in accordance with the £-Government Act of 2002, 44 U.S.C. § 3501 note (20 12)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule I 8(b) states that
all deci sions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document's disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shal l redact such material from public access.
dismiss this case.
The undersigned GRANTS petitioner's motion and DISMISSES this case.
FACTS
On January 6, 2014, petitioner saw Dr. Charlie P. Chan at the El Monte Adult Clinic.
Med. recs. Ex. 1, at 2. Petitioner had a history of chronic low back pain and needed a refill of his
pain medications. Petitioner also had hypertension, hepatitis C with elevated liver function test
results, gout, and hyperglycemia. He was on Tramadol, Benazepril, Atenolol, Allopurino lol,
Diclofenac, and Zantac. Id. Petitioner received flu vaccination.
Id. at 3.
On February 24, 20 14, petitioner returned to the El Monte Adult Clinic, and saw Dr.
Chan. Petitioner told Dr. Chan that after he got the flu shot, he got sick and had a headache and
congestion. He had to take extra Tramadol and therefore needed a refill of his Tramadol. Med.
recs. Ex. 2, at 2. The Tramadol helped to relieve the headache. He claimed his headache pain
was 3 out of 10. Petitioner was alert and in no acute distress. Dr. Chan diagnosed petitioner
with a tension headache and chronic low back pain. Id.
On March 28, 2014, petitioner was admitted to LAC+USC Medical Center, complaining
of intermittent palpitations since the prior night, some dizziness, and chest pain. Med. recs. Ex.
4, at l. When petitioner put ice on his chest, the chest pain stopped. In the ER, he had
palpitations and dizziness. He stopped taking all hi s medications for two weeks and was instead
taking Alka-Seltzer.
Id. The diagnosis was an episode of supraventricular tachycardia.
Petitioner was also obese and had hypertension .
Id. Petitioner denied any symptoms before
leaving the ER.
Id. at 2.
On December 9, 2015, Dr. Paul-Henri Cesar wrote petitioner had headaches after a flu
vaccination two years previously. Med. recs. Ex. 10, at 1. He concluded that petitioner likely
developed the flu . He had a bloody nose and sinus congestion. Now he had intermittent low-
grade headaches. He had three to four days of headaches a week. Id. Petitioner' s blood
pressure was 134/80.
Id. at 2. Dr. Cesar' s diagnosis was tension headaches. He also opined that
petitioner might have migraines.
Id.
On December 17, 2015, petitioner went to the El Monte Adult Clinic and saw Dr.
Kimphuong D. Pham-Tabencki. Med. recs. Ex. 9, at l . The doctor diagnosed him with
abnormal liver function tests, obesity, chronic migraine, gout, hypertension, and hepatitis C.
Id.
On Apri l 6, 20 16, petitioner saw Dr. Sandhya Ravikumar. Med. recs. Ex. 10, at 3.
Petitioner had had an ultrasound which showed he had cirrhosis of the liver. He tried a drug
called cyclobenazeprine for two months, but it did not help. Petitioner thought it made hi s
headaches worse and he reported having vivid dreams, insomnia, and waking up with a
headache. He had headaches on average half of the month, lasting eight hours a day, which were
throbbing. He did not have associated nausea or vomiting or any vision changes. He had a 15-
2
pound weight gain and intermittent palpitations. Id. Dr. Ravikumar diagnosed petitioner with
migraines, which might have a component of rebound headaches from Tramadol.
Id. at 4. Dr.
Ravikurnar told petitioner to start Topamax, continue magnesium , discontinue cyclobenzaprine,
and avoid Tramadol.
Id.
On June 8, 2016, petitioner saw Dr. Henry Levenson who noted a history hepatitis C,
chronic headaches, gout, hypertension, chronic low back pain, and obesity.
Id. at 5. He did not
have a headache that day. Petitioner stopped taking Topamax. He was thinking of starting
medical marijuana. Dr. Levenson diagnosed petitioner with chronic headaches possibly
migraine, hepatitis C, cirrhosis, sciatica in the right lower extremity, chronic gout, and chronic
anxiety and insomnia.
Id.
On August 8, 2016, petitioner saw Dr. Elizabeth Joe, who diagnosed him with chronic
daily tension headache with a component of migraine.
On September 26, 2016, petitioner saw Dr. Sarah Sheibani . Med. recs. Ex. 17, at 4. She
noted he had abnormal liver function tests, chronic headache, chronic hepatitis C infection,
chronic lower back pain, chronic migraine, cirrhosis and chronic 1iver disease, cirrhosis of the
liver due to chronic hepatiti s C, chronic kidney disease, abnormal creatine clearance-glomerular
filtration, depression, gout, hypertension, obesity, superventricular tachycardia, and palpitations.
Id.
DISCUSSION
To satisfy his burden of proving causation in fact, petitioner must prove by preponderant
evidence: "( I) 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 HHS,
418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services,
956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by "proof of a logical
sequence of cause of and effect showing that the vaccination was
the reason for the injury [,]" the logical sequence being supported
by a "reputable medical or scientific explanation[,]" i.e. , "evidence
in the form of scientific studies or expert medical testimony[.]"
418 F.3d at 1278 .
Without more, "evidence showing an absence of other causes does not meet petitioner's
affirmative duty to show actual or legal causation." Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact.
Id. at 1148.
Petitioner must show not only that but for his flu vaccination, he would not have migraine
3
headaches, but also that flu vaccine was a substantial factor in causing his mjgraine headaches.
Shyface v. Sec'y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
Under the Vaccine Act, 42 U.S.C. § 300aa-13(a)(l), the undersigned may not rule in
petitioner's favor based solely on his allegations unsupported by medical records or medical
opinion. Petitioner' s medical records do not support that flu vaccine caused his chronic
headaches. Petitioner has not filed an expert medical report stating that flu vaccine caused his
chronic headaches.
The undersigned GRANTS petitioner's motion to dismiss and DISMISSES this petition
for petitioner's failure to make a prima facie case of causation in fact.
CONCLUSION
The petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the Clerk of Court is directed to enter judgment herewith. 2
IT IS SO ORDERED.
Dated: August 31, 2017 ~!}~
Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 1l{a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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