Toddish v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: November 21, 2018

* * * * * * * * * * * * * * CHRISTINE TODISH, *

* No. 16-275V

Petitioner, * Special Master Sanders

* v. *

* SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * *

DECISION1

On February 26, 2016, Christine Todish (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Program” or “Act”). 42 U.S.C. § 300aa-10 to -34 (2012).2 Petitioner alleged that she suffered from Telogen Effluvium as a result of the Gardasil vaccinations she received on November 15, 2012, January 11, 2013, and May 21, 2013. Petition, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program. On November 19, 2018, Petitioner submitted a Motion to Dismiss her petition. ECF No. 62. Respondent did not object to Petitioner’s Motion. Id. at 1.

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 the vaccination, or (2) that she suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain evidence that the injury alleged by Petitioner was caused by the Gardasil vaccinations.

Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim. Although Petitioner has filed three expert reports in support of her claim, the reports opine on a diagnosis—alopecia areata—which is neither alleged in the petition nor contained in the medical records. See Pet’r Exs. 6, 54, 60, ECF Nos. 36, 49. Petitioner was unable to secure a medical expert to confirm a diagnosis of the injury alleged in her petition—Telogen Effluvium. See ECF No. 58. Therefore, in the absence of evidence to support Petitioner’s claim that her vaccinations caused her alleged injury, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master