Sullivan v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS N0. 14-226V (Not to be published) >l<>l<>|<=I<*>l<*>l<>l<>|<>l<=l<>l<*>l<*=l<>l=>l<**>l<*>l=>l<*>l<=l<>l< BRIDGET SULLIVAN, for * JAMES SULLIVAN, * Filed: August l2, 2014 >|< Petitioner, * >l< v. * Dismissal Decision; * RCFC l2(b)(6); SECRETARY OF HEALTH AND * Vaccine not covered; HUMAN SERVICES, * Denial Without Hearing >l< >l= Respondent. * >l< >l<>l<>l<`»i=>l<*>l<>l<>l<>|<>l¢*>l<>l<*>l=*>l¢*>l<*=l<>l<=l<>l<>|<>l<** Bridget Sullivan, Pro Se Petitioner.

Tara J. Kilfoyle, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION DISMISSING CASEl On March 24, 20l4, Petitioner Bridget Sullivan filed an action on behalf of James Sullivan seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program")z. Petitioner alleges that James suffered chronic muscle aches, pains, tremors, immune dysfunction, and cardiac problems as a result of receiving the Pandemrix influenza ("flu") vaccine.

§ 300aa.

Petitioner did not submit a filing fee with her petition, but instead moved for leave to proceed in forma pauperz's. On April 8, 2014, l issued an Order denying Petitioner’s motion because it did not fully substantiate Petitioner’s entitlement to a waiver of her filing fee in this case.3 Thereafter on July 9, 2014, Respondent’s counsel filed a motion to dismiss arguing that the vaccine at issue is not covered under the Act, and that Petitioner has not alleged that James is within the category of individuals who are eligible to receive compensation under the Act.

A Vaccine Program petition may be dismissed for failure to state a claim pursuant to the U.S. Court of Federal Claims Rule l2(b)(6). That rule requires a petitioner to provide "a short and plain statement of the claim, which shows that the petitioner is entitled to relief. " Totes- lsotner Corp. v. United States, 594 F3d 1346 (Fed. Cir. 2010), (quoting Bell Atl. Co)"p. v. Twombly, 550 U.S. 544,555 (2007)); Scanlon v. Sec'y ofHealth & Human Servs., N0. l3-2l9V, 2013 WL 5755061 (Fed. Cl. Sept. 27, 2013) a]j"ci, 114 Fed. Cl. 135 (Fed. Cl. 2013). ln her Motion to Dismiss, Respondent correctly states that "to be entitled to compensation under the Vaccine Act, petitioner must demonstrate that James ‘received a vaccine set forth in the Vaccine Injury Table.’ " Resp’t’s Motion to Dismiss at 3 (ECF N0. 6) (citing § ll(c)(l)(a)). ln this case, Ms. Sullivan alleges that James’ injuries were caused by the Pandemrix vaccine, but that vaccine is not covered under the Act. 42 C.F.R. §100.3. The Pandemrix vaccine is a monovalent flu vaccine administrated in several European countries during the HlNl pandemic. The Act, by contrast, only covers trivalent flu vaccines and other seasonal flu vaccines. See 42 C.F.R. § 100.3 (a)(XlV); Aguayo v. Secj) ofHeallh & Human Servs., N0. 12- 563V, 2013 WL 441013, at *l (Fed. Cl. Sp. Mstr. Jan 15, 2013). The Secretary has not published a notice of coverage with respect to this monovalent HlNl vaccine, and Congress has not enacted an excise tax related to monovalent HlNl flu vaccine. Schmz'a't v. Health & Human iS`e/'vs., N0. ll-40lV, 2011 6148590 (Fed. Cl. Sp. Mstr. Nov. 21, 2011).4 Because of the above, there is insufficient evidence upon which an entitlement award could be based. To receive compensation under the Program, Petitioner must prove either l) that James suffered a "Table lnjury" - i.e., an injury falling within the Vaccine Injury Table - corresponding to one of her vaccinations, or 2) that he suffered an injury that was actually caused by a vaccine. See §§13(a)(1)(A) and ll(c)(l). An examination of the record, however, did not uncover any evidence that James suffered a "Table Injury." Further, Petitioner cannot establish James was injured by a covered vaccine.

The Secretary of Health and Human Services has two years from the date of the Centers for Disease Control and Prevention’s recommendation within which to amend the Table. §300aa-l4(e)(2). ln addition, Congress must approve an excise tax providing funds for the payment of compensation related to any vaccine that the Secretary of Hea|th and Human Services adds to the Table. See 26 U.S.C. §413l(a).

I am very sympathetic to James’ plight. But it is evident from the record that Ms. Sullivan has failed to demonstrate that her son received a vaccine set forth in the Vaccine Injury Table.

Accordingly, this case is dismissed for failure to state a claim upon which relief may be granted. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

. t Brian H. Corcoran Special Master