                                           ORIGINAL
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                               OFFICE OF SPECIAL MASTERS                                FILED
                                                                                       FEB - 7 2014
CYNTHIA M. MORRIS SABIN,                     *                                         MQrni IDT __
                                                     No. 13-624V                    FEDERAL CLAIMS
                        Petitioner,          *       Special Master Christian J. Moran
                                             *


v.                                           *       Filed: February 7,2014
                                             *


SECRETARY OF HEALTH                          *       Entitlement; motion to dismiss;
AND HUMAN SERVICES,                          *       H1N1 vaccine; timeliness of petition;
                                                     equitable tolling.
                        Respondent.          *


Cynthia M. Morris Sabin, Genoa, IL, appearing pro se;
Debra A. Filteau Begley, United States Dep't of Justice, Washington, DC, for respondent.

                              DECISION DISMISSING PETITION1

        Cynthia M. Morris Sabin seeks compensation through the National Childhood
Vaccination Injury Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2012). Her
petition alleges that she received a "trivalent H1N1 AS03 Influenza vaccination" on November
3, 2009. She further alleges that this vaccination caused her to suffer narcolepsy with cataplexy.
Ms. Morris Sabin filed her petition on August 29, 2013.

       The Secretary filed a motion to dismiss the petition, presenting two arguments. First, the
Secretary argues that the 2009 monovalent H1N1 vaccine is not a vaccine listed in the Vaccine
Table. Second, the Secretary argues that although the trivalent seasonal influenza vaccine is
covered, Ms. Morris Sabin filed her petition more than nine months beyond the time permitted in
the statute of limitations.


       Ms. Morris Sabin submitted two responses to the Secretary's motion to dismiss.
However, neither response effectively rebuts the Secretary's basic arguments. Thus, for the
reasons explained below, the petition is dismissed.


        1The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
   I.       Facts


        The parties do not dispute the basic chronology of events in Ms. Morris Sabin's medical
history. With the exception of the type of vaccination Ms. Morris Sabin received, the petition
and the medical records concur regarding the following chronology.

        Ms. Morris Sabin was born in 1965. Pet. ]f 1. In 2009, she was working as a nurse.
Pet'r's First Resp., filed Oct. 10, 2013, f 12.

         On November 3, 2009, she received a vaccination. The petition, as previously
mentioned, characterizes the November 3, 2009 vaccination as a "trivalent H1N1 AS03
Influenza vaccination." Pet. f 3, citing exhibit 2. The cited record from Kishwaukee
Community Hospital lists two vaccinations as occurring on November 3, 2009, "H1N1" and
"INFLU." Exhibit 2. Of these, the former vaccination is highlighted.

        According to the medical records filed as exhibits, Ms. Morris Sabin first sought medical
attention on December 23, 2009. On that date, she complained about fatigue, confusion,
dizziness, and headaches. Pet. f 5; exhibit 3. Dr. Michelson did not record when these
symptoms began.2

        Ms. Morris Sabin sought care from different doctors. A neurologist, Mohammed K.
Ghumra, suggested, on January 5, 2010, that Ms. Morris Sabin may be suffering from narcolepsy
with cataplexy. Pet. ]j 7, citing exhibit 5 at 32-33. The Secretary summarized many of the
records relating to the treatments given to Ms. Morris Sabin. See Resp't's Mot. to Dismiss at 2-
4. These later medical records, although exhibits in Ms. Morris Sabin's case, are not relevant to
the issues in the Secretary's motion to dismiss.

   II.      Standards for Adjudication

        A special master may dismiss a petition for failure to state a claim upon which relief may
be granted, pursuant to RCFC 12(b)(6). To properly state a claim, the petitioner must provide "a
short and plain statement of the claim, which shows that the petitioner is entitled to relief."
Totes-Isotoner Corp. v. United States, 594 F.3d 1346 (Fed. Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A complaint does not need detailed factual allegations,
but "factual allegations must be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true (even if doubtful in fact)."
Twombly, 550 U.S. at 555.


         As described in the Secretary's motion to dismiss, Ms. Morris Sabin provided
information about when her symptoms began to other doctors. In these histories, the onset of her
problems occurred closer to the date of vaccination, November 3, 2009, and, in one history, the
problems began on the date of vaccination.
        However, determining exactly how soon after vaccination Ms. Morris Sabin started to
have problems is not necessary for deciding the issues raised in the Secretary's motion. It is
sufficient to note that by December 23, 2009, Ms. Sabin was seeking medical attention.
   III.      Analysis

        The parties' briefs raise three issues. First, whether the Vaccine Program may
compensate a petitioner for an injury caused by the monovalent HlNl vaccine given in 2009.
Second, whether Ms. Morris Sabin filed a claim based upon a trivalent seasonal influenza
vaccine within the time permitted by the statute of limitations. Third, and related to the second
issue, whether Ms. Morris Sabin may rely upon the doctrine of equitable tolling to save an
otherwise untimely filed petition.

   A. Monovalent HlNl Vaccine


        When a court's power to consider a petition is challenged, the court looks to the true
nature of the cause of action. Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1372 (Fed
Cir. 2005). Further, pleadings of pro se petitioners are construed broadly. Purr v. Nicholson,
400 F.3d 1375, 1380 (Fed. Cir. 2005); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354,
1359 n.2 (Fed. Cir. 2007) (Dyk, J.) (concurring in part and dissenting in part).

     Although the petition suggests that Ms. Morris Sabin received a single vaccine on
November 3, 2009, see Pet. ^f 3, the vaccination record shows that she was given two different
vaccines. One vaccine was for HlNl. The other vaccine was a seasonal vaccination for
influenza. Ms. Morris Sabin claims that the HlNl vaccine caused her narcolepsy with
cataplexy. See Pet. f 14; Pet'r's First Resp. fflf 25, 30-33, 35; Pet'r's Second Resp., filed Oct. 24,
2013, m 18, 20, 25.3
          The 2009 monovalent HlNl vaccine is not a vaccine listed in the Vaccine Table. See
Fitzgerald v. Sec'v of Health & Human Servs., No. 12-493V, 2012 WL 6861329 (Fed. CI. Spec.
Mstr. Dec. 19, 2012) (dismissing claim involving HlNl vaccine for failure to state a claim upon
which relief may be granted); Aguayo v. Sec'v of Health & Human Servs., No. 12-563 V, 2013
WL 441013 (Fed. CI. Spec. Mstr. Jan. 15, 2013). This claim is dismissed.

   B. Trivalent Seasonal Influenza Vaccine


        On the same day that Ms. Morris Sabin received the monovalent HlNl vaccine, she also
received a vaccination for seasonal influenza. Exhibit 2. Although her petition does not focus
on this vaccination, she may have intended to allege that the trivalent influenza vaccine harmed


       3In this context, Ms. Morris Sabin refers to a "World Wide side effect of Narcolepsy
with Cataplexy, in relation to vaccine, HlNl AS03." Pet'r's Second Resp. If 18. Presumably,
Ms. Morris Sabin is referring to reports from Europe. According to a statement from the Centers
for Disease Control and Prevention, which the Secretary submitted as exhibit A, European
researchers reported an increased incidence of narcolepsy with a vaccination against HlNl,
known as Pandemrix. According to the CDC's statement, the United States government did not
license Pandemrix for use in this country. The accuracy and reliability of Ms. Morris Sabin's
allegation regarding "World Wide" reports and the Secretary's discussion of Pandemrix are
otherwise beyond the scope of this decision.
her. To the extent that the petition raised this issue, the Secretary argues that Ms. Morris Sabin
filed her petition beyond the time permitted by the statute of limitations.

         In the Vaccine Program, the petition must be filed within "the expiration of 36 months
after the date of the occurrence of the first symptom or manifestation of onset or of the
significant aggravation of [the alleged] injury." 42 U.S.C. § 3OOaa-16(a)(2). Here, since the
petition was filed on August 29, 2013, her petition would be timely only if the first symptom
occurred before August 30, 2010.

       However, the Secretary argues that Ms. Morris Sabin experienced symptoms of
narcolepsy by no later than December 22, 2009. See Resp't's Mot. to Dismiss at 5-6. Ms.
Morris Sabin has not argued that the symptoms the Secretary identified were not symptoms of
her narcolepsy. See Pet'r's First Resp.4 Consequently, the Secretary has established the basic
facts for dismissing the case due to an untimely filing of the petition. The remaining question is
whether Ms. Morris Sabin may rely upon equitable tolling.

   C. Equitable Tolling

       In Cloer v. Sec'v of Health & Human Servs., 654 F.3d 1322, 1344-45 (Fed. Cir. 2011)
(en banc), the Federal Circuit recognized that, as a matter of law, equitable tolling could prevent
a case from being dismissed due to the failure to comply with the statute of limitations. The
Federal Circuit also stated that "extraordinary circumstances" would justify equitable tolling and
found that the facts in Cloer did not justify equitable tolling.

        Here, Ms. Morris Sabin invokes equitable tolling for two reasons. First, she argues that
she was not aware of the association between the HlNl vaccine and narcolepsy until shortly
before she filed her petition. Second, she argues that equitable tolling is appropriate when there
is a fiduciary relationship, such as with a doctor and patient. Neither argument is persuasive.

        First, with respect to Ms. Morris Sabin's lack of awareness, the facts of her case are
essentially analogous to the facts in Cloer.

        Second, Ms. Morris Sabin has not established a fiduciary relationship between the
Secretary and her. She has not established that the government was obligated to warn her about
any potential adverse effects of her vaccinations such that the breach of this duty would support
equitable tolling. Consequently, the Secretary's motion to dismiss any claim based upon the
trivalent influenza vaccination is granted. See Wax v. Sec'v of Health & Human Servs., 108 Fed.
CI. 538 (2012) (denying motion for review of decision granting motion to dismiss).




       4Although Ms. Morris Sabin's First Response is ostensibly a response about the statute
of limitations, it actually presents facts that are relevant to equitable tolling. Effectively, it
duplicates Ms. Morris Sabin's Second Response. Her arguments about equitable tolling are
discussed in the following section.
   IV.      Conclusion


        Ms. Morris Sabin may not proceed on a claim that the HlNl monovalent vaccination
given to her in 2009 harmed her because the Vaccine Program does not compensate injuries
caused by that particular vaccine during the 2009-10 flu season. Ms. Morris Sabin also may not
proceed on a claim that a trivalent influenza vaccination given to her in 2009 harmed her because
she filed her claim outside the time permitted by the statute of limitations and she cannot rely
upon equitable tolling.

         Consequently, her petition is DISMISSED.


         IT IS SO ORDERED.




                                                    Christian J. Morar
                                                    Special Master
