Rehfeld v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: November 24, 2020

* * * * * * * * * * ** * URSULA REHFELD * Unpublished

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Petitioner, * No. 16-1048V

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v. * Special Master Gowen

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SECRETARY OF HEALTH * Dismissal; Insufficient Proof. AND HUMAN SERVICES, *

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Respondent. *

* * * * * * * * * * * * * Robert Hanreck, Robert J. Hanreck, P.A., for petitioner.

Catherine E. Stolar, U.S. Dept. of Justice, Washington, D.C., for respondent.

DISMISSAL1 On August 24, 2016, Ursula Rehfeld (“petitioner”), filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program or Program).2 Petitioner alleges that she suffered from anaphylactic shock, atrial fibrillation, weakness and gastrointestinal disorders as a result of receiving the combined tetanus-diphtheria and pertussis (“Tdap”) and inactivated polio vaccine (“Repevax”) on August 28, 2013. Petition (ECF No. 1). The information in the record does not establish entitlement to compensation.

On November 24, 2020, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet. Mot.”) (ECF No. 109). Petitioner stated that an investigation of the facts and science supporting her case has demonstrated that she will be unable to prove that she is entitled to compensation in the Vaccine Program. Pet. Mot. at ¶ 11. In these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the Respondent and the Vaccine Program. Id. at ¶ 2. Additionally, petitioner understands that a decision dismissing her petition will result in judgment against her and she has been advised by counsel that a judgment will end all of her rights in the Vaccine Program. Id. at ¶ 3. Petitioner understands that her attorney may apply for fees and costs once her case is dismissed and judgment is entered against her. Id. at ¶ 4. Respondent expressly reserves the right, pursuant to 42 U.S.C. § 300aa-15(e), to question the good faith and reasonable basis of the claim and to oppose, if appropriate, the application for fees and costs. Id.

To receive compensation in the Vaccine Program, petitioners have the burden of proving either: (1) that the vaccinee suffered a “Table Injury,” i.e., an injury beginning within a specified period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a “Table injury”) or (2) that the vaccinee suffered an injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). In this case, petitioner was not alleging a Table Injury and therefore, must demonstrate the vaccine was the cause-in-fact of her alleged injuries. To satisfy her burden of proving causation in fact, petitioner must show by preponderant evidence: “(1)) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F. 3d 1274, 1278 (Fed. Cir. 2005).

Moreover, under the Vaccine Act, the Vaccine Program may not award compensation based on the petitioner’s claims alone. Rather, the petitioner must support the claim with either medical records or the opinion of a competent medical expert. § 13(a)(1). In this case, the medical records are insufficient to establish entitlement and petitioner’s experts have not presented opinions that support a finding of vaccine causation under Althen.

Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient proof. The Clerk of the Court shall enter judgment accordingly.3

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