Carpenter v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 12-310 (Not to be published)

************************* BRANDY CARPENTER, parent of * Filed: November 20, 2014 A. H., a minor, *

* Petitioner, * Petitioner’s Motion for a Decision v. * Dismissing the Petition; Vaccine Act

* Entitlement; Denial Without Hearing SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* ************************* William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, PC, Memphis, TN, for Petitioner.

Gordon Shemin, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

DECISION DISMISSING CASE1 On May 11, 2012, Brandy Carpenter filed a petition on behalf of A.H., her minor child, seeking compensation under the National Vaccine Injury Compensation Program (the “Program”).2 Petitioner alleged that A.H. suffered from a neurological injury as a result of receiving the Diptheria-tetanus-acellular-Pertussis (“DTaP”), haemophilus influenza type B (“Hib”), pneumococcal conjugate, hepatitis B (“hep B”), inactive polio, and rotovirus vaccinations on September 4, 2009. See Petition at 1 (ECF No. 1).

During a status conference in this case that was held on November 10, 2014, Petitioner indicated that she had decided to request a decision dismissing this case. Order at 1 (ECF No. 42). She has now done so. Motion for a Decision Dismissing Petition (ECF No. 43). That motion also indicated that Respondent was provided with a copy of it in advance of filing and expressed no opposition to the motion. ECF No. 43 at 2.

To receive compensation under the Program, a petitioner must prove either (1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused by a vaccine. See §§13(a)(1)(A) and 11(c)(1). An examination of the record, however, does not uncover any evidence that A.H. suffered a “Table Injury.” Further, Petitioner has indicated that she no longer intends to rely upon her previously filed expert report and, therefore, the record does not contain a medical expert’s opinion or any other persuasive evidence establishing that the alleged injury that A.H. experienced could have been caused by the vaccinations received.

Under the Vaccine Act, a petitioner may not receive a Program award based solely on his claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. §13(a)(1). In this case, there is insufficient evidence in the record for Petitioner to meet her burden of proof. Petitioner’s claim therefore cannot succeed and must be dismissed. §11(c)(1)(A).

Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master