Lanier v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-00250V

Filed: March 31, 2017

**************************** CAROLYN LANIER, *

*

Petitioner, * Petitioner’s Motion for a Decision

* Dismissing Her Petition; Pneumococcal v. * Conjugate Vaccine; Shoulder Injury;

* Insufficient Proof of Causation; SECRETARY OF HEALTH AND * Entitlement; Denial Without Hearing HUMAN SERVICES, * Special Processing Unit (“SPU”)

*

Respondent. *

*

**************************** Paul r. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

Darryl R. Wishard U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1 Dorsey, Chief Special Master:

On February 22, 2016, Carolyn Lanier (“petitioner”) filed a petition for compensation pro se under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act” or “Program”).3 Mr. Paul Brazil was substituted as petitioner’s counsel on November 21, 2016. Petitioner alleges that she suffered an injury to her right shoulder as a result of a pneumococcal conjugate vaccine she received on October 26, 2015. See Medical Records, pages 1, 8 (ECF No. 1). The information in the record does not show entitlement to an award under the Program.

On March 31, 2017, petitioner moved for a decision dismissing her petition, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation. (ECF No. 22). Petitioner indicated in her motion that “[a]n investigation of the facts and science supporting her case ha[s] demonstrated to petitioner that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. Petitioner further indicated that she “understands that a decision by the [undersigned] dismissing her petition will result in a judgment against her. [She] has been advised that such a judgment will end all of her rights in the Vaccine Program.” Id.

To receive compensation under the Program, petitioner must prove either 1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or 2) that she suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Examination of the record does not disclose any evidence that petitioner suffered a “Table Injury.” Further, the record does not demonstrate that petitioner suffered the residual effect of her injury for more than six months nor does it contain a medical expert’s opinion or any other persuasive evidence indicating that petitioner’s alleged injury was vaccine-caused.

Under the Vaccine Act, a petitioner may not be awarded compensation based on the petitioner’s claims alone. Rather, the petition must be supported by either the medical records or by a medical opinion. § 13(a)(1). In this case, the record does not contain medical records or a medical opinion sufficient to demonstrate that petitioner is entitled to compensation. For these reasons, and in accordance with § 12(d)(3)(A), petitioner’s claim for compensation is denied and this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master