     In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1122V
                                      (Filed: July 25, 2018)

* * * * * * * * * * * * * *                       *
KAREN L. CHRISTNER,                               *        UNPUBLISHED
                                                  *
                Petitioner,                       *
                                                  *        Motion for Summary Judgment; Influenza
v.                                                *        (“Flu”) Vaccine; Transverse
                                                  *        Myelitis; Onset Period
SECRETARY OF HEALTH                               *
AND HUMAN SERVICES,                               *
                                                  *
                Respondent.                       *
                                                  *
* * * * * * * * * * * * * *                       *

Braden Blumenstiel, Esq., Blumenstiel Falvo, LLC, Dublin, OH, for petitioner.
Darryl Wishard, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

      ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT1

Roth, Special Master:

        On September 12, 2016, Karen Christner (“Ms. Christner” or “petitioner”) timely filed a
petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §
300aa-10, et seq.2 (“Vaccine Act” or “Program”). Petitioner alleges that she received an influenza
vaccine on September 13, 2013, and thereafter suffered from “pain, weakness, and limitations in
her legs,” and paraplegia. Petition at 2. On March 27, 2018, respondent filed a Motion for
Summary Judgment. ECF No. 61. On April 10, 2018, petitioner filed a response. ECF No. 62.

1
  Although this Order has been formally designated “unpublished,” it will nevertheless be posted on the
Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Order
will be available to anyone with access to the internet. However, the parties may object to the Order’s
inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the whole Order will be available to the public. Id.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
                                           I. Background

        The petition was filed along with petitioner’s first affidavit, filed as Pet. Ex. 1. ECF No. 1.
In her affidavit, petitioner stated that she received a flu vaccine on or about September 13, 2013,
and “sometime over the next couple of months,” began to experience pain in both of her legs. Pet.
Ex. 1 at ¶7. Petitioner affirmed that in December of 2013, her legs felt weak and the muscle in her
right leg felt like they were burning; she stated that this feeling continued “for many months” until
her hospitalization in May of 2014. Id. at ¶8. She stated that “around Christmas of 2013,” she went
to the mall and walked “for a period of time,” after which “my feet and legs were hurting
tremendously and I feared I could not make it back to my car.” Id. at ¶12. Petitioner recalled
instances in January and February of 2014 where she was cleaning her kitchen and experienced
weakness and shaking in her legs. Id. at ¶¶10, 11. Petitioner affirmed that following her
hospitalization in May of 2014, she was diagnosed with transverse myelitis and continues to suffer
from complications of that condition. Id. at ¶¶14, 15, 17.

        Petitioner filed a supplemental affidavit on January 6, 2017, as Pet. Ex. 8. ECF No. 14. In
her affidavit, petitioner stated that the purpose of the supplemental affidavit was to explain why
her medical records did not reflect any complaints of leg pain or weakness until her hospitalization
on May 8, 2014. Pet. Ex. 8 at ¶3.

        Petitioner stated that she first began to notice bilateral leg aches and stiffness “within a
month or two of the vaccination.” Id. at ¶16. She also stated, “…within two months of my flu
vaccination on September 13, 2013, I began to experience aches and stiffness in both of my legs.”
Id. at ¶11.

       On March 27, 2018, respondent filed a Motion for Summary Judgment (“Resp. Mot.”).
ECF No. 61. Respondent submitted the evidence in this matter “does not present a sufficient
disagreement of material fact to require submission to the factfinder, and is so one-sided that
respondent must prevail as a matter of law.” Resp. Mot. at 3. Respondent claims that “it is
undisputed that the onset of [petitioner’s] TM symptoms occurred 237 days after the flu
vaccination.” Id. This would place the onset of petitioner’s symptoms on May 8, 2014.

        Petitioner filed a response (“Pet. Resp.”) on April 10, 2018, in which she submitted that
the onset of her TM symptoms began during the fall and winter of 2013. Pet. Resp. at 4-8, 15, ECF
No. 62.

       Respondent did not file a reply. This Motion is now ripe for a ruling.

                                               II. Discussion

       Vaccine Rule 1(c) provides that the Rules of the Court of Federal Claims (“RCFC”) apply
when they are consistent with the Vaccine Rules. In turn, RCFC Rule 56(a) allows the court to
decide a claim on summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”




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        In considering a motion for summary judgment, the key inquiry is whether the evidence
presents a sufficient disagreement of fact as to require submission to a fact finder, or whether it is
so one-sided that one party must prevail as a matter of law. Jay v. Sec’y of Health & Human Servs.,
998 F.2d 979, 982 (Fed. Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986)). “There is no genuine issue of material fact where the evidence presented is insufficient to
permit a reasonable factfinder to find in favor of the nonmoving party.” Jay, 998 F.2d at 982-83
(citing Anderson, 477 U.S. at 249).

        In the instant matter, the petitioner places the onset of her symptoms sometime in the fall
and winter of 2013. Respondent submits that the onset of petitioner’s symptoms should be May 8,
2014, when she presented to the hospital complaining of weakness in the hips and knees and a
burning sensation. Pet. Ex. 1 at 3. It is clear that the date of onset is in dispute. Furthermore, the
date of the onset of petitioner’s symptoms is necessarily a material fact, as it directly affects the
timing petitioner’s injury and petitioner’s ability to meet prong 3 of Althen, which requires
petitioner to show a temporal relationship between the vaccine and the alleged injury.

        Vaccine Rules do not authorize factfinding on summary judgment. Jay, 998 F.2d at 982.
“To allow a special master to weigh and find facts prior to the end of the case (effectively at an
arbitrary point in the litigation dictated by the summary judgment movant) would raise serious due
process concerns.” Id. at 983. “If to dispose of the case the special master must resolve conflicts
of fact or weigh conflicting evidence, or is statutorily constrained to do so, he or she may not
render summary judgment.” Id. In order to determine whether petitioner has shown preponderant
evidence demonstrating a temporal relationship between her receipt of the influenza vaccine and
her development of TM, I would first need to determine when petitioner developed TM. That
requires a finding of fact, which I am not authorized to conduct on summary judgment.
Accordingly, respondent’s Motion for Summary Judgment must be DENIED.

       IT IS SO ORDERED.

                                                      s/ Mindy Michaels Roth
                                                      Mindy Michaels Roth
                                                      Special Master




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