Mora v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 13-421V Filed: July 21, 2014 Not to be Published

***************************** G.G.M., a Minor, by and Through her * Guardian Ad Litem, LORENA MORA, *

* Petitioner, * *

v. * Motion to Dismiss

* in order to sue civilly SECRETARY OF THE HEALTH * AND HUMAN SERVICES, *

* Respondent. *

***************************** Danny C. Soong, West Covina, CA, for petitioner.

Claudia B. Gangi, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION1

On June 25, 2013, petitioner filed a petition under the National Childhood Vaccine Injury Act of 1986 (hereinafter the “Vaccine Act” or the “Act”), 42 U.S.C. §§ 300aa-10-34 (2006), alleging that her daughter G.G.M. had contracted transverse myelitis due to a prior influenza vaccination she received on September 5, 2012.

After a number of telephonic status conferences discussing the case, petitioner made a settlement demand on respondent on March 11, 2014. Each party retained a life care planner and vocational rehabilitation specialist.

On July 11, 2014, respondent made a counteroffer to petitioner.

On July 21, 2014, at the request of petitioner’s counsel, the undersigned held a status conference with the parties. Petitioner reviewed respondent’s counteroffer and decided that she could receive more compensation in civil court against the vaccine administrator and manufacturer because of the inapplicability of the collateral source rule in the Vaccine Program and the $250,000.00 cap for pain and suffering under the Vaccine Act. Petitioner’s counsel stated that petitioner wished to dismiss her case and sue the vaccine administrator and manufacturer civilly. Respondent said she would not appeal the dismissal.2 Petitioner’s motion to dismiss is GRANTED and this case is DISMISSED.

DISCUSSION

This is a causation-in-fact case. Rather than proceed through the litigative route, with the filing of expert reports and the holding of a hearing on entitlement, the parties attempted to settle this case. The undersigned is assured that they made a conscientious effort. However, petitioner, as is her right, has moved to dismiss rather than continue in a forum that appears unsatisfactory to petitioner in attaining the amount of compensation that a civil court may provide.

The Vaccine Act permits petitioners to pursue a civil action once judgment has entered on a decision by filing an election to sue civilly under § 300aa-21(a). In order to obtain a judgment in this case, petitioner has moved to dismiss. The undersigned GRANTS her motion to dismiss.

CONCLUSION

Petitioner’s petition is DISMISSED. In the absence of a motion for review pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3 IT IS SO ORDERED.

July 21, 2014 /s/Laura D. Millman DATE Laura D. Millman

Special Master