Lasnetski v. Secretary of Health and Human Services

128 Fed. Cl. 242, 2016 U.S. Claims LEXIS 1485, 2016 WL 5851889
CourtUnited States Court of Federal Claims
DecidedSeptember 9, 2016
Docket14-580V
StatusPublished
Cited by24 cases

This text of 128 Fed. Cl. 242 (Lasnetski v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lasnetski v. Secretary of Health and Human Services, 128 Fed. Cl. 242, 2016 U.S. Claims LEXIS 1485, 2016 WL 5851889 (uscfc 2016).

Opinion

National Vaccine Injury Act; HPV Vaccine; Defined and Recognized Injury; Application of Althen Test.

OPINION

HORN, J.

On July 9, 2014, Petitioner Holly Lasnetski filed a petition for compensation under the National Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (the Vaccine Act). Special Master Lisa D. Hamilton-Field-man of the United States Court of Federal Claims dismissed the petition for failure to state a claim upon which relief can be granted and denied compensation in a decision issued on April 29, 2016. See Lasnetski v. Sec’y Health & Human Servs., No. 14-580V, slip op. at 6 (Fed. Cl. Spec. Mstr. April 29, *245 2016). Following the decision, on May 26, 2016, Petitioner filed a timely Motion for Review of the Special Master’s decision pursuant to Rule 23 of the Rules of the Unite'd States Court of Federal Claims (RCFC), Appendix B (2016). This case comes to the court upon that motion.

FINDINGS OF FACT

Holly LasnetsM was bom on November 30, 1986. She claimed in her petition that she was “a healthy adult female prior to receiving the Gardasil (HPV) vaccination, [ 2 ] with the exception of the following conditions: neck sprain, migraine headaches, depression and sinusitis.” She alleged that she subsequently

suffered sensory nervous system problems and sensory dysesthesia, as well as typical symptoms associated with sensory dy-sesthesia, including fatigue, fever, nausea, vomiting, constipation, heartburn, reflux, abdominal pain and cramping, urine frequency issues, rash, memory impairment, muscle weakness, alteration in menstrual pattern, ataxia[ 3 ], flushing, chills and fever, and aggravated back problems; all caused-in-fact by the Gardasil (HPV) vaccination administered on July 18, 2011.

In making her determination, Special Master Hamilton-Fieldman examined the administrative record, including Ms. Lasnetski’s relevant medical history, both prior to receiving the Gardasil vaccine and subsequent thereto. According to the Special Master:

In 2008, Petitioner sought treatment for a history of headaches, tingling in her left arm, and anxiety. In 2009, she again sought treatment for headaches; numbness in her face, throat, arms, and hands; and anxiety-related shortness of breath. In early 2011, she sought treatment for a viral illness, as well as a cough, a sore throat, a fever, headaches, and dizziness.

Lasnetski v. Sec’y Health & Human Servs., slip op. at 6 (citations omitted).

The record before the Special Master and the court demonstrates that, throughout the pre-Gardasil-vaecine period, Ms. Lasnetski sought medical treatment- for various symptoms and illnesses and received a variety of diagnoses from various health care professionals. In 2008, at a visit to a chiropractor, Dr. D.L. Duininck, in Willmar, Minnesota, in which Petitioner mentioned symptoms of headache and tingling in her left arm, she was diagnosed with a “[h]eadache of cervical origin.” In 2008, Dr. Raymond Mellema, at an urgent care facility in Willmar, Minnesota, “advised Holly that she probably belongs at the Crisis Center” for treatment of anxiety and insomnia. In April 2009, she was “diagnosed with aphthous ulcers[ 4 ] and was told it was the herpes virus” by Dr. Kristin Wegner „in Willmar, Minnesota. Again, in June 2009, she complained of “a cold on and off’ and was diagnosed by Dr. Steve Meister in Will-mar, Minnesota with an “[u]pper respiratory infection.” In July 2009, Ms. Lasnetski “thought she had a miscarriage”; she was “worn down and tired,” and Dr. Michael Nicklawsky, in Willmar, Minnesota, diagnosed sinusitis, depression and migraine headaches. At the end of July 2009, while starting and stopping the medications Topa-max, Citalopram and Augmetin, Ms. Lasnet-ski suddenly felt numb all over her body, had shortness of breath, and felt as if she was going to have a panic attack. Dr. Wegner thought the numbness was “probably secondary to anxiety or panic,” although, he added, it could have been a reaction to starting and stopping medication. In February 2011, Petitioner presented at an urgent care facility, in Willmar, Minnesota, “with urinary frequency and burning.” She also complained of back *246 pain. Dr. Mellema assessed a “[pjrobable UTI.” On April 3, 2011, Dr. Mellema, in Willmar, Minnesota recorded a diagnosis of “[e]hronic rhinitis” after noting:

She gives a history of having been ill a lot this winter and seems to be describing more of [a] progression of viral illnesses rather than one specific thing. ... She has been on antibiotics multiple times without benefit and this has been through other clinics. ... [S]he thinks there is some mold in her current living environment.

As noted above, the vaccine at issue was administered on July 18, 2011. On the date of the vaccine, Ms. Lasnetski was seen by her primary care doctor at the St. Cloud Medical Group in St. Cloud, Minnesota for “an annual preventive health examination.” At this appointment, Lasnetski reported “new health concerns [of] sore throat, chronic cough.” Additionally, she was diagnosed by the treating physician, Dr. Sara Jorgenson, with genital warts. Petitioner had previously tested positive for HPV, and the doctor recommended the Gardasil vaccination. Initially, Ms. Lasnetski declined the vaccine. Following a discussion with Ms. Lasnetski about the risks and benefits of Gardasil, a Human Pa-pillomavirus (HPV) vaccine, Dr. Jorgenson administered the vaccine to Ms. Lasnetski.

There are discrepancies both in Ms. Las-netski’s filings in the present case and elsewhere in the record as to when Ms. Lasnet-ski began suffering the symptoms she alleges were caused by the July 18, 2011 vaccine. Ms. Lasnetski’s July 9, 2014 petition for compensation and her May 26, 2016 motion for review present different symptomatology. The petition reads: “Petitioner began to develop ... pain ... within a few days after receiving the Gardasil (HPV) vaccination.” The motion to review, however, reads: “Petitioner reported problems the day after receiving the Gardasil vaccination. ... Petitioner developed acute complications including but not limited to low back pain, tingling into the legs, tingling in the face, neck pain, migraines, constipation, increased urination, rash, hair loss and abdominal pain.” (citations omitted). Review of the record before the court does not clarify the inconsistencies. Dr. Melissa Ensign’s report dated Aug. 17, 2011, states: “She [Ms. Lasnetski] fust noticed symptoms a few hours after her gardasil [sic] injection on 7/28/11 with the tingling in her L lower leg and then into her right leg.” The Special Master found, however, based on the record before her that almost a year after the vaccination, “[p]etitioner reiterated her symptoms [to the Mayo Clinic doctors on May 22-24, 2012], adding that almost all of them appeared within a month after her vaccination.”

In her petition, Ms. Lasnetski alleges that the vaccine resulted in a wide array of health effects, including:

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128 Fed. Cl. 242, 2016 U.S. Claims LEXIS 1485, 2016 WL 5851889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasnetski-v-secretary-of-health-and-human-services-uscfc-2016.