    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                         No. 14-1212V
                                      Filed: June 25, 2018
                                        To Be Published

*************************************
ALICIA SKINNER-SMITH,                       *
                                            *
               Petitioner,                  *
                                            *                 Pending civil action under Section
 v.                                         *                 11 of the Vaccine Act; respondent
                                            *                 moves to dismiss.
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
               Respondent.                  *
                                            *
*************************************
Richard Gage, Cheyenne, WY, for petitioner
Justine E. Walters, Washington, DC, for respondent.

MILLMAN, Special Master

                                              DECISION1

        On December 17, 2014, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10–34 (2012), alleging that tetanus, diphtheria, and acellular
pertussis (“Tdap”) vaccine administered on February 6, 2012 at Ochsner Medical Center
(“OMC”) caused her sharp pain, an abscess, and numerous other problems. Pet. at ¶¶ 1 and 4.
The case was assigned to the Special Processing Unit (“SPU”). On July 5, 2016, respondent
filed his Rule 4(c) Report opposing compensation. In his Report, respondent mentioned that the
petition indicated “a medical review panel proceeding was initiated in Louisiana” in connection
with the allegations in this case; however, no documentation in connection with these
proceedings has been provided. Doc 48, at 1-2.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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 E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states
that all decisions 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 shall redact such material from public access.
       On July 13, 2016, the case was reassigned to the undersigned.

        On August 3, 2016, the undersigned gave petitioner until October 3, 2016 to file an
expert report. After two motions for an extension of time, petitioner filed Dr. Janine Ferrier’s
expert report on November 14, 2016.

         The undersigned gave petitioner until January 13, 2017 to file a supplemental expert
report from Dr. Ferrier after a status conference on November 14, 2016 because Dr. Ferrier did
not give a basis for her conclusion that petitioner’s receipt of the Tdap vaccine caused her
condition. On January 13, 2017, petitioner filed a motion for an extension of time to file the
report by February 27, 2017, which the undersigned granted. On February 27, 2017, petitioner
asked for an extension of time and the undersigned gave her a new deadline of April 28, 2017 to
file the report. On May 3, 2017, petitioner again asked for another extension of time until June
12, 2017 to file the report, which the undersigned granted. Petitioner did not file Dr. Ferrier’s
supplemental expert report by June 12, 2017.

        On June 14, 2017, the undersigned issued the first Order to Show Cause why this case
shall not be dismissed for failure to prosecute under Vaccine Rule 21(b)(1).

        On July 5, 2017, petitioner’s counsel responded to the Order to Show Cause stating Dr.
Ferrier had already opined that many of petitioner’s symptoms are related to her Tdap
vaccination and petitioner was trying to work through the OMC legal department in an attempt to
secure more cooperation from petitioner’s treating doctors.

       On July 6, 2017, the undersigned ordered petitioner to file a status report advising the
Court when she expected to complete the record by August 7, 2017.

       On August 7, 2017, respondent filed a motion to dismiss and his reply to petitioner’s
response to the Order to Show Cause.

        On the same day, petitioner filed a status report requesting additional time to find an
expert to opine on this case. The undersigned granted petitioner’s informal motion and gave her
60 days until October 6, 2017 to complete the record. The undersigned denied respondent’s
motion to dismiss because the record in this case was incomplete.

       On October 6, 2017, petitioner filed a status report which was an informal motion for an
extension of time. The undersigned gave petitioner until October 18, 2017 to file updated
medical records and a supplemental expert report.

        On October 10, 2017, petitioner filed updated medical records. On October 11, 2017,
the undersigned issued an order discussing the recently filed medical records. The undersigned
suggested that petitioner’s counsel should keep in mind this case has difficulties, explained the
difficulties, and warned petitioner’s counsel that she will not award attorneys’ fees and costs
unless there was a reasonable basis to proceed.

                                                 2
       On October 19, 2017, petitioner filed a status report stating she requested a conference
with her treating rheumatologist through the OMC legal department and was awaiting a
response.

        Also on October 19, 2017, the undersigned held a telephonic status conference and gave
petitioner until November 20, 2017 to file outstanding records, records from the medical review
panel (“MRP”) proceeding in Louisiana, and an amended statement of completion.

     On November 20, 2017, petitioner filed updated medical records and records from the
MRP proceeding in Louisiana.

        On November 21, 2017, the undersigned issued the second Order to Show Cause.
Because petitioner had a pending medical malpractice claim against OMC when she filed her
petition in the Vaccine Program, the undersigned ordered petitioner to show cause by December
21, 2017 why this case shall not be dismissed under Section 11(a)(5)(B) of Vaccine Act.

        On December 6, 2017, petitioner responded to the Order to Show Cause of November 21,
2017 stating petitioner never instituted a civil action for her vaccine injuries. Doc 76, at 1.
Petitioner explained that an administrative MRP procedure is a pre-screening provision required
before a civil action can be filed in Louisiana. Id. at 2. Petitioner’s administrative proceeding
was dismissed and precluded petitioner from bringing any civil action. Id.

        On January 4, 2018, respondent filed the first motion for an extension of time to file his
reply to petitioner’s response, which the undersigned granted on that day. Respondent filed his
second motion for an extension of time on March 8, 2018, which the undersigned also granted
that day.

         On May 7, 2018, respondent filed a reply to petitioner’s response to the Order to Show
Cause and the second motion to dismiss. In his reply, respondent stated that under Louisiana
state law, filing a request for review of a medical malpractice claim constitutes filing a
“malpractice complaint” and initiates a civil action for damages. Doc 84, at 3-4 (citing Nathan
v. Touro Infirmary, 512 So.2d 352, 353 (La. 1987)). Although the MRP does not directly
award damages, the panel is the first step in a claimant’s quest for an eventual damages award.
Id. at 6. Moreover, respondent mentioned the legislative history of the Vaccine Act that
Congress intended to force petitioners to choose a forum in Section 11. Id. at 8.

       On June 1, 2018, petitioner filed a sur-response to respondent’s reply stating the MRP
proceeding in Louisiana can never amount to a “civil action for damages” but a “pre-suit”
proceeding. Doc 86, at 1-2 (citing Everett v. Goldman, 359 So.2d 1256, 1267 (La. 1978)).
Furthermore, the outcome of the panel decision is not binding since medical review panelists are
not judges. Id. at 2 (citing Medine v. Roniger, 879 So.2d 706, 715 (La. 2004)).

       On June 18, 2018, respondent replied to petitioner’s sur-response stating the Louisiana

                                                 3
Supreme Court cases cited in petitioner’s sur-response reinforced the view that a MRP request is
the commencement of a civil action for damages on a medical malpractice claim under Louisiana
Law. Doc 87, at 1. Respondent reiterated that the legislative history of the Vaccine Act
precludes a petitioner from both receiving a damages award through settlement of a civil action
and filing a petition under the Act. Id. at 2.

       On June 22, 2018, petitioner filed a sur-sur-response to respondent’s sur-reply reiterating
her position that she never filed a civil action. Doc 88, at 1.

                                             DISCUSSION

        42 U.S.C. § 300aa-11(a)(5)(B) provides “If a plaintiff has pending a civil action for
damages for a vaccine-related injury or death, such person may not file a petition under
subsection (b) for such injury or death.” Under Louisiana Code of Civil Procedure, “A civil
action is a demand for the enforcement of a legal right. It is commenced by the filing of a
pleading presenting the demand to a court of competent jurisdiction.” LA. CODE CIV. PROC.
ANN. art. 421 (2018). Under the Louisiana Medical Malpractice Act (“MMA”), “No action
against a health care provider covered by this part, or his insurer, may be commenced in any
court before the claimant’s proposed complaint has been presented to a medical review panel
established pursuant to this section.” LA. STAT. ANN. § 40:1231.8.B(1)(a)(i) (2017). The
Louisiana Supreme Court held in Nathan that “a medical malpractice action was in fact
commenced by the claimant’s filing with the Medical Review Panel.” Nathan v. Touro
Infirmary, 512 So.2d 352, 353 (La. 1987). The Louisiana Supreme Court explained that,

        Filing a complaint with the review panel is a mandatory initial step in a malpractice
        claim and a requirement before filing suit “in any court.” Therefore the filing with
        the panel was equivalent to the filing of a suit and for present purposes was actually
        the commencement of the suit. The legislature acknowledged this relationship
        and provided that the filing of the request for a review of a claim suspended the
        running of prescription, . . . , just as the filing of a suit in a competent jurisdiction
        suspends the running of prescription.

Id. at 353-354. The United States Court of Federal Claims has treated “filing,” “bringing,” and
“commencing” a civil action equivalent under Section 11 of the Vaccine Act. Lamb v. Sec’y of
HHS, 24 Cl.Ct.255, 258 (1991) (“the generally accepted rule is that “filing” an action is
equivalent to “bringing” an action or to “commencing” an action under Section 11.”).2

       Petitioner’s medical malpractice panel request was filed on February 5, 2013 and
dismissed on June 18, 2015. Doc 74-1, at 1, 29. Petitioner’s MRP proceeding was pending
when she filed her petition under the Vaccine Program on December 17, 2014. Because filing a
complaint with the MRP is a mandatory initial step in a malpractice claim, petitioner’s filing

2
  In Lamb, the special master dismissed the petition under §11(a)(6), which prohibits participation in the
Vaccine Program when petitioner brings a civil action after November 15, 1988 for damages for a
vaccine-related injury or death before November 15, 1988.
                                                     4
with the MRP was actually the commencement of a civil action in a state court. Commencing a
civil action is deemed as equivalent to filing or bringing a civil action under Section 11 of the
Vaccine Act.       The fact that the dismissal of petitioner’s MRP proceeding precluded her from
seeking a civil remedy in a state court reinforces that the MRP proceeding was a civil action.
Furthermore, there is no language in Section 11 of the Vaccine Act that requires a civil action to
be commenced in a state or federal court. The fact that the Louisiana state court Judge Henry G.
Sullivan, Jr. granted the motion to extend the MRP filed by OMC on September 22, 20143 and
dismissed the MRP proceeding on June 18, 20154 further shows that this is a civil action
according to Louisiana’s view.

       A MRP proceeding can lead to damages. A MRP proceeding is the first step in a
claimant’s quest for a damages award, regardless of whether or not the MRP can directly award
damages. Moreover, the board of Louisiana Patient’s Compensation Fund (“PCF”) governs
MRP proceedings. The purpose of the PCF is to compensate victims of medical malpractice.
Although the MRP does not directly award damages, it serves a damages function for medical
malpractice claims in Louisiana.

        In addition, the legislative history of the Vaccine Act makes clear that Congress intended
to force an election of fora and to prevent simultaneous dual litigation. H.R. 908, 99th Cong. §
2111 (1986); Hamilton v. Sec’y of HHS, 28 Fed.Cl. 315, 319 (1993).

        Therefore, because a filing of a complaint with the MRP is a mandatory step to
commence a medical malpractice action in Louisiana that could have led to damages, petitioner’s
filing of a complaint with the Louisiana MRP constituted a civil action under Section 11 of the
Vaccine Rule.

        The undersigned GRANTS respondent’s motion to dismiss and DISMISSES this case
for violation of Section 11(a)(5)(B) of the Vaccine Act.

                                           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.5


IT IS SO ORDERED.

Dated: June 25, 2018                                                s/ Laura D. Millman
                                                                    Laura D. Millman
                                                                       Special Master

3
  Doc 74-1, at 17.
4
  Id. at 29.
5
  Pursuant to Vaccine Rule 11(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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