                                                      CORRECTED

         In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                              No. 16-1144
                                          (Not to be Published)

*************************
ZACHARIAH OTTO,             *
                            *                                             Chief Special Master Corcoran
                Petitioner, *
                            *                                             Dated: June 17, 2020
v.                          *
                            *
                            *                                             Human papillomavirus; Postural
                            *                                             orthostatic intolerance syndrome;
SECRETARY OF HEALTH AND     *                                             Decision dismissing petition;
HUMAN SERVICES,             *                                             Vaccine Rule 21; RCFC 41.
                            *
                Respondent. *
                            *
*************************

Andrew D. Downing, Van Cott & Talamante, Phoenix, AZ, for Petitioner.

Mark Hellie, U.S. Dep’t of Justice, Washington, DC, for Respondent.


                                  DECISION DISMISSING PETITION1

       On September 15, 2016, Zachariah Otto filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”),2 alleging that the human
papillomavirus (“HPV”) vaccine he received on October 13, 2014, caused him to experience an
adverse reaction, including but not limited to chronic fatigue or postural orthostatic intolerance
syndrome (“POTS”). An entitlement hearing was held on November 4–5, 2019, in Washington,

1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’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 Decision will be available to the public.
Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
DC, but no ruling or decision in the matter has yet issued.

        On June 11, 2020, and after notifying me via status conference of his intentions (see June
8, 2020 docket entry), Petitioner filed what he styled as a “Motion for a Decision Dismissing his
Petition.” ECF No. 113 (“Motion”). In it, Petitioner requests that I dismiss his claim prior to
issuance of a full written decision, based on his expressed desire to opt out of the Program and
“pursue a third party action in district court” against the manufacturer of the HPV vaccine. Motion
at 2. He also represented that Respondent had no objection to the requested relief.

        A day later, however, and despite Petitioner’s representations that the Motion was
unopposed, Respondent filed an objection. ECF No. 114 (“Opp.”). Respondent maintains that the
Motion is improper under Section 12(d)(3)(A) of the Act, primarily because it does not contain
Petitioner’s expressed acknowledgement (as set forth in a draft template maintained on the website
of the Court of Federal Claims)3 that “he has not proven his case.” Opp. at 3. Respondent otherwise
indicates a willingness to consent to dismissal, however, if Petitioner refiles the Motion with
language conforming to the template. Opp. at 4 n.2.

         Petitioner filed a reply in further support of the Motion on June 15, 2020. ECF No. 115
(“Reply”). In it, Petitioner acknowledges awareness that any written Decision dismissing the claim
will likely “make comment on the evidence presented at hearing” (Reply at 1), and that he
understood his Motion would result in an adverse determination that would end his Vaccine
Program rights. Id. at 1-2. He disputes, however, that he was required to make admissions about
his claim in the Motion, and reiterates his request that I immediately act on the pending Motion.
Id. at 4.


                                                    ANALYSIS

         The provisions under the Vaccine Rules for ending a case before a decision has been issued
are largely inapplicable herein. Petitioner may no longer avail himself of Vaccine Rule
21(a)(1)(A), which governs voluntary dismissals before service of the Rule 4(c) Report, and
Respondent has not stipulated to dismissal under Rule 21(a)(1)(B). In addition, even if the parties
had so stipulated, Petitioner seeks entry of a judgment, whereas Vaccine Rule 21(a) would only
result in an “order concluding proceedings.” Rule 21(a)(3).

       Accordingly, the only remaining channel for the relief Petitioner requests is a “motion
seeking dismissal”—a mechanism for ending cases that other claimants have used, either because

3
  United States Court of Federal Claims: Vaccine Sample Filings, https://www.uscfc.uscourts.gov/vaccine-sample-
filings (last visited June 15, 2020).


                                                      2
they have determined that the claim cannot succeed, or simply because they choose not to continue
with the claim, but have reached that determination after the time to act under Rule 21 has passed.
See, e.g., Goldie v. Sec’y of Health & Human Servs., No. 18-1476V, 2019 WL 6045647, at *1
(Fed. Cl Spec. Mstr. Oct. 11, 2019). However, as Respondent correctly observes, the “magic
words” that petitioners who wish to dismiss a case after filing of the Rule 4(c) Report usually
include in their dismissal motion are missing from Mr. Otto’s Motion (although Petitioner’s Reply
acknowledges at least that any Decision dismissing the case at this point will not only be adverse
to seeking relief in the Program in the future, but also may well include some comment on the
evidence filed and testimony adduced at hearing).

        Thus, although it is true that the present circumstances do not afford Petitioner a means of
dismissal directly under the Vaccine Rules, dismissal of petitions can still occur—and often does.
Indeed, the rules of the Court of Federal Claims (which are properly applied herein)4 permit
dismissal of claims at a petitioner/plaintiff’s request and “on terms that the court considers proper.”
RCFC 41(a)(2). Accordingly, I find it is appropriate to grant Petitioner’s Motion, even though it
does not formally contain the language Respondent prefers (and I therefore grant the Motion over
Respondent’s objection). Expediency, judicial efficiency, and providing fairness to Vaccine
Program claimants—values that constantly inform the work of special masters in deciding vaccine
injury claims—all counsel in favor of allowing dismissal even at this late stage in the proceedings.
Dismissal of the case will obviate the need to write a lengthy decision, and cut off the prospect of
future appeal as well (at least on matters not pertaining to attorney’s fees), thus further preserving
judicial resources.

        However, and in accordance with RCFC 41(a)(2), this Decision shall include several
express limitations in order to make it conform to the requirements of Section 12(d)(3) of the Act.
In particular, I find that (as Petitioner has anticipated) Petitioner did not establish his claim by a
preponderance of the evidence. First, Petitioner’s causation theory was unreliable and not
supported by sufficient scientific/medical evidence. As I informed Petitioner earlier in the case, I
have yet to hear a case in which a petitioner successfully established that the HPV vaccine can
cause POTS. See Interim Fees Decision, dated October 5, 2018 (ECF No. 43) at 5–6. This case
was no different, and even featured the same expert (Dr. Shoenfeld) testifying in a similar manner
on the same topics he has addressed in prior actions.5 I thus do not find that Petitioner established
4
  The Vaccine Rules specifically stated that the Rules of the Court of Federal Claims “apply only to the extent they
are consistent with the Vaccine Rules,” and otherwise empower special masters to “regulate the applicable practice”
under the Vaccine rules “[i]n any matter not specifically addressed” therein. Vaccine Rule 1(b) and (c). Here, I find
that permitting dismissal—in the form stated in this Decision— based on a rule of the Court of Federal Claims is fully
consistent with the Vaccine Rules, given that language of Vaccine Rule 21 does not cover voluntary dismissal by court
order, whereas RCFC 41 does cover voluntary dismissal by court order. Thus RCFC 41(a)(2) addresses a situation not
contemplated by Vaccine Rule 21.
5
 See Johnson v. Sec’y of Health & Human Servs., No. 14-254V, 2018 WL2051760, at *24 (Fed. Cl. Spec. Mstr. Mar.
23, 2018).


                                                          3
in this case that the HPV vaccine can cause POTS.

        Second, the record in this case does not permit the conclusion that any of Petitioner’s
injuries were likely vaccine-caused. Mr. Otto had many health problems prior to vaccination, and
I do not find that any of his post-vaccination illnesses or health issues can credibly be linked to
receipt of the HPV vaccine. And the timeframe in which his symptoms manifested after
vaccination was too remote to be medically acceptable, since the record shows that Petitioner’s
primary alleged injuries (POTS and small fiber neuropathy) did not manifest until five to six
months after vaccination.

        As a result, and after hearing testimony from experts and fact witnesses, along with a
careful review of the record, I find that Petitioner did not preponderantly establish entitlement to
a damages award. Moreover, this dismissal is with prejudice.6 And I note that Respondent has not
conceded that the claim possessed reasonable basis, and therefore may challenge any final fees
request in this matter on that ground.

       Based upon the status conference I held with the parties before the filing of the present
motion, it was my understanding that Petitioner is prepared to live with the consequences of
dismissal, in the interests of obtaining a prompt judgment in this case. I accordingly have ruled on
the Motion in the matter set forth above, over the form of Respondent’s objection—but not the
substance—based on my understanding that Petitioner is willing to accept the adverse character of
my determinations set forth above.

                                                 CONCLUSION

        Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely
on his claims alone. In this case, there is insufficient evidence in the record for Petitioner to meet
his burden of proof, and insufficient reliable scientific proof offered in support of his causation
theory. Therefore, Petitioner's claim cannot succeed and must be dismissed. Section 11(c)(1)(A).

         Accordingly, Petitioner’s Motion for a Decision Dismissing the Case is hereby

6
  Rule 41(a)(2) gives the Court discretion as to whether a dismissal should be with or without prejudice. See Giesecke
& Devrient GmbH v. United States, 146 Fed. Cl. 631, 641 (Fed. Cl. 2020) (“[u]nder Rule 41(a)(2), a voluntary
dismissal by court order is ‘without prejudice’ unless the court finds that the defendant will suffer legal prejudice,
such as when a plaintiff “does not seek dismissal until a late stage” in the litigation”). There are three factors to
consider on whether a dismissal should be with or without prejudice: “(i) the burden on the defendant if the case were
to be dismissed without prejudice; (ii) the progress of the litigation; and (iii) the diligence and good faith of the
plaintiff.” Klamath Irrigation District v. United States, 116 Fed. Cl. 117, 119 (Fed. Cl. 2014).

Here, the late stage of the litigation—a case pending for more than three years, featuring multiple experts and reports,
full fact discovery, ample briefing, plus a full evidentiary hearing—strongly weighs in favor of dismissal with
prejudice.


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GRANTED, and the Petition is dismissed with prejudice. In the absence of a motion for review
filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in
accordance with the terms of this decision.7


         IT IS SO ORDERED.
                                                                s/ Brian H. Corcoran
                                                                Brian H. Corcoran
                                                                Chief Special Master




7
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.

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