Harper v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: October 29, 2020 *************************** RALPH F. HARPER, * No. 19-941V

* Petitioner, * Special Master Sanders

v. *

*

SECRETARY OF HEALTH * Dismissal; Insufficient Proof; AND HUMAN SERVICES, * Influenza (“Flu”) and Pneumococcal Conjugate

* Vaccines; Transverse Myelitis (“TM”) Respondent. *

*

*************************** David A. Tierney, Rawls Law Group, P.C., Richmond, VA, for Petitioner.

Sarah C. Duncan, U.S. Department of Justice, Washington, DC, for Respondent.

DISMISSAL1 On June 28, 2019, Ralph Harper (“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 he developed transverse myelitis (“TM”) as a result of the flu and pneumococcal conjugate vaccines he received on September 28, 2016. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.

On September 15, 2020, Petitioner filed an unopposed motion for a decision dismissing his petition. ECF No. 17. In his motion, Petitioner conceded that “[a m]otion to [s]how [c]ause filed by [R]espondent, and a subsequent status conference with the Special Master, as well as investigation of prior similar cases has demonstrated to [P]etitioner that he will be unable to prove that he is entitled to compensation in the Vaccine Program.” Id. at 1. He continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the [R]espondent, and the Vaccine Program.” Id. Respondent had no objection to Petitioner’s motion. Id. at 2.

To receive compensation under the Program, Petitioner must prove either (1) that he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that he 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 and/or pneumococcal conjugate vaccines.

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 at this time, 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