Perez v. Dr. Neil C. Evans

Background

Eric Andrew Perez, a former United States Marine Corps member, participated in a clinical trial of AstraZeneca’s COVID-19 vaccine through the Department of Veterans Affairs. He alleged that he received two vaccine doses and then developed medical problems, although the study director later told him that he had received a placebo. Perez alleged that his medical records were falsified and that federal officials and other defendants participated in a conspiracy involving the vaccine program and the alteration or deletion of electronic records.

Perez submitted a claim to the federal Countermeasures Injury Compensation Program. He alleged that government officials deliberately obstructed that claim after a VA medical-records office denied his request for records because he had not properly completed the required paperwork. His amended complaint named federal defendants, Dr. Mark J. Mulligan, and AstraZeneca entities, and asserted claims including claims under the federal vaccine-liability law and the Racketeer Influenced and Corrupt Organizations Act.

Report and Recommendation and Objections

Magistrate Judge Sarah Netburn recommended granting the defendants’ motions to dismiss and dismissing the amended complaint with prejudice. She found that amendment would be futile because Perez could not allege new facts curing the deficiencies in his claims. Perez filed lengthy objections and numerous exhibits. The district court noted that he used ChatGPT to help draft the objections and included citations to at least two cases that the court determined were fabricated or materially inaccurate.

The court stated that using artificial intelligence was not itself prohibited by the applicable rules, but Rule 11 requires litigants to ensure that their legal arguments and factual statements have adequate support. The court found that Perez violated those obligations but declined to impose sanctions, in part because he admitted using ChatGPT. The court also held that most of Perez’s objections repeated earlier arguments or raised new arguments and factual allegations that could not properly be presented for the first time in objections to a magistrate judge’s recommendation.

Court’s Analysis

The court rejected Perez’s objection that the recommendation failed to interpret his filings liberally. It held that the recommendation had considered his arguments and applied the special consideration given to filings by people without lawyers.

As to Dr. Mulligan, the court held that Perez had not properly served him. Actual notice did not cure defective service, and Perez had not shown good cause for the failure. The court also found that Perez had not shown that he properly triggered Mulligan’s duty to waive service. Separately, the recommendation had determined that the claims against Mulligan failed under the rule requiring a complaint to state a legally sufficient claim, so proper service would not have revived those claims.

Regarding the federal vaccine-liability law, the court held that any claim based on its willful-misconduct exception had to be filed exclusively in the United States District Court for the District of Columbia. The court therefore held that it lacked authority to hear those claims and that dismissal under the rule governing subject-matter jurisdiction was required.

The court also rejected Perez’s objections concerning his civil racketeering claim. It found that his allegations did not adequately identify an enterprise or show the required injury to business or property. The physical and emotional injuries Perez alleged were not the type of injury for which that statute provides a civil damages remedy.

Finally, the court upheld the denial of permission to amend. Although people proceeding without lawyers are generally given an opportunity to amend, the court found amendment futile because Perez did not identify additional facts or proposed amendments that could cure the defects. The court separately denied permission to add claims under the Federal Tort Claims Act or the constitutional damages remedy recognized in Bivens because Perez did not identify specific facts supporting those proposed claims.

Disposition

Judge Vernon S. Broderick overruled Perez’s objections, adopted Magistrate Judge Netburn’s Report and Recommendation in full, and dismissed Perez’s amended complaint in its entirety with prejudice and without leave to amend. The court denied Perez’s motions to preserve evidence as moot. It also denied Perez’s motion for a temporary restraining order concerning access to, modification of, or reliance on his VA mental-health records because the dismissal of his claims meant that he could not show a likelihood of success on the merits. The court declined to certify that an appeal would be taken in good faith and denied permission to proceed without paying the appellate filing fee.