Vardine v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: September 30, 2019

* * * * * * * * * * * * * * * PAMELA VARDINE, * No. 18-290V

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Petitioner, * Special Master Sanders

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v. *

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SECRETARY OF HEALTH * Dismissal; Insufficient Proof; AND HUMAN SERVICES, * Influenza (“flu”) Vaccine; Guillain-Barré

* Syndrome (“GBS”) Respondent. *

* * * * * * * * * * * * * * * Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner. Colleen C. Hartley, United States Department of Justice, Washington, D.C., for Respondent.

DISMISSAL1

On April 23, 2018, Pamela Vardine (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that she developed Guillain-Barré syndrome (“GBS”) as a result of the influenza (“flu”) vaccine she received on February 26, 2015. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.

On September 27, 2019, Petitioner filed a motion for a decision dismissing her petition. ECF No. 39. In her motion, Petitioner conceded that an

[I]nvestigation of the facts, the available medical testing, the state of the science supporting [P]etitioner’s case, the medical record, the testimony of her treating physician and [P]etitioner’s review of the case decisions of the Office of Special Masters, the United States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit, coupled with consultation with a medical expert have demonstrated to [P]etitioner that [s]he will be unable to prove that [s]he is entitled to compensation in the Vaccine Injury Compensation Program (“VICP”).

Id. at 1. Petitioner continued, “to proceed any further would be unreasonable and would waste the resources of the Court, the [R]espondent, the [P]etitioner and the VICP.” Id. Respondent had no objection to Petitioner’s motion. Id. at 2.

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 persuasive evidence that Petitioner’s alleged injury was caused by the flu vaccine.

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, and Petitioner has not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3

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