Pedersen v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: November 5, 2018

* * * * * * * * * * * * * ROSALIE HELEN PEDERSEN, * UNPUBLISHED

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Petitioner, * No. 17-1562V

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v. * Special Master Gowen

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SECRETARY OF HEALTH * Petitioner’s Motion for Dismissal; AND HUMAN SERVICES, * Influenza (Flu); Guillain Barré

* Syndrome (GBS). Respondent. *

* * * * * * * * * * * * * Jeannette Poyerd-Loiacono, Staten Island, NY, for petitioner.

Amy Paula Kokot, United States Department of Justice, Washington, DC for respondent.

DECISION DISMISSING PETITION1

On October 19, 2017, Rosalie Helen Pedersen (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered Guillain- Barré Syndrome (“GBS”) as the result of an influenza (“flu”) vaccination she received on November 10, 2014. Petition at Preamble, ECF No. 1.

On October 22, 2018, petitioner filed a motion for a decision dismissing her petition. Petitioner’s Motion to Dismiss, ECF No. 20. The Motion notes that “[a]n investigation of the facts and science supporting [petitioner’s] case has demonstrated to petitioner that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. at ¶ 1. The Motion also provides that petitioner understands that a decision by the special master dismissing her petition will result in a judgment against her and will end all of her rights in the Vaccine Program. Id. at ¶ 3. Petitioner intends to protect her rights to file a civil action in the future, and, therefore, pursuant to 42 U.S.C. § 300aa-21(a)(2), petitioner intends to elect to reject the Vaccine Program judgment and to file a civil action. Id. at ¶ 6. Petitioner understand that respondent expressly reserves the right, pursuant to Section 15(e), to question the good faith and reasonable basis of petitioner’s claim and to oppose, if appropriate, her application for costs. Id. at ¶ 5.

On November 5, 2018, respondent indicated in an email to my law clerk that he does not oppose petitioner’s Motion. This matter is now ripe for review.

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 vaccination; or (2) that her alleged injury was actually caused by a vaccine. See §§ 300aa- 13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not support a finding that petitioner suffered a “Table injury.” Further, the record does not contain persuasive evidence indicating that petitioner’s GBS was caused-in-fact by the flu vaccination she received on November 10, 2014.

Under the Vaccine Act, the Program may not award compensation based solely on a petitioner’s own claims. Rather, a petitioner must support her claim with either medical records or the opinion of a competent physician. § 300aa-13(a)(1). In this case, the medical records do not establish causation either as a “Table injury” or by causation-in-fact, and petitioner has not filed an expert report in support of her claim. Petitioner has not met her burden of proof and her claim therefore cannot succeed and must be dismissed. § 11(c)(1)(A).

Thus, petitioner’s Motion is GRANTED and this case is DISMISSED for insufficient proof. The Clerk of the Court shall enter judgment accordingly.

IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master