In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1280V
UNPUBLISHED
MACKENZIE SUMMERS,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 10, 2021
SECRETARY OF HEALTH AND Motion for decision; Dismissal;
HUMAN SERVICES, Human papillomavirus (“HPV”)
vaccine; Postural Orthostatic
Respondent. Tachycardia Syndrome (“POTS”)
Andrew D. Downing, Van Cott & Talamante, PLLC, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 28, 2020, Mackenzie Summers filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10
through 34,2 (the “Vaccine Act”). Ms. Summers alleged that she developed Postural
Orthostatic Tachycardia Syndrome (“POTS”), among other injuries, from a human
papillomavirus (“HPV”) vaccine she received on September 13, 2017. ECF no. 1.
On July 28, 2021, Ms. Summers filed a motion for a decision dismissing the
petition. ECF no. 18. For the reasons set forth below, Ms. Summers’s motion is
GRANTED, and this case is DISMISSED.
Ms. Summers did not file any medical records, affidavits, or other supporting
documentation with the petition. The PAR Initial Order required Ms. Summers to file
1Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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), Petitioner has
14 days to identify and move to redact medical or other information, the disclosure of which would constitute
an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this
definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
these statutorily required documents. ECF No. 5. Ms. Summers received nine
extensions of time but did not file any documents to comply with the PAR Initial Order.
On July 28, 2021, Ms. Summers filed a motion for a decision dismissing the
petition stating that:
“She wishes to pursue a third party action in district court against [the vaccine
manufacturer] directly. This choice should not be viewed in any way that
Petitioner does not believe in the merits of her claim or that her injuries are not a
result of [the HPV vaccine]. Petitioner simply needs a judgment from the Vaccine
Program so that she may reject said judgment and submit her election to opt out.
However, petitioner feels she will be unable to prove that she is entitled to
compensation in the Vaccine Program.”
ECF No. 18.
To receive compensation under the National Vaccine Injury Compensation
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 11(c)(1). Ms. Summers alleged a Non-Table
claim, i.e., that her POTS and other injuries were actually caused by the HPV
vaccination.
Under the Vaccine Act, a petitioner may not receive compensation 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). For a
Non-Table claim, a petitioner must satisfy all three of the elements established by the
Federal Circuit in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (2005):
“(1) 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 proximate temporal relationship between vaccination and
injury.”
Initially, Ms. Summers has not filed any medical records as a preliminary
statutory requirement to compensation in the Vaccine Program. In regard to the
requirements of a Non-Table claim, she has not submitted sufficient evidence to
establish the Althen prongs, such as an expert report proposing a medical theory.
Moreover, Ms. Summers admitted in her motion for a decision that she will not be able
to establish entitlement to compensation.
Thus, Petitioner has failed to establish entitlement to compensation in the Vaccine
Program. This case is dismissed for insufficient proof. The clerk shall enter
judgment accordingly.3
3If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3