Prescott v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: December 29, 2020

* * * * * * * * * * * * * CHEYENNE PRESCOTT, * Unpublished

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Petitioner, * No. 17-2055V

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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. *

* * * * * * * * * * * * * Mark T. Sadaka, Mark T. Sadaka, for petitioner.

Voris E. Johnson, U.S. Department of Justice, Washington, D.C., for respondent.

DISMISSAL1 On December 28, 2017, Cheyenne Prescott (“petitioner”), filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program or Program).2 Petitioner alleges that she suffered vaccine induced systemic inflammatory response to immunization, Guillain-Barre syndrome (“GBS”), neuropathy, Reynaud’s phenomenon, numbness and tingling inn her arms and legs with generalized weakness, among other injuries as a result of receiving the Meningococcal vaccine on February 6, 2015. Petition at Preamble (ECF No. 1). The information in the record does not establish entitlement to compensation.

On December 7, 2020, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet. Mot.”) (ECF No. 38). Petitioner stated that she understands that a decision by the Special Master dismissing her petition will result in a judgment against her and she has been advised that such a judgement will end all of her rights, for the vaccine in question in this matter, in the Vaccine Program. Pet. Mot. at 1. Petitioner also understands that her attorney may apply for attorneys’ fees and costs once her case is dismissed and judgment is entered against her. Id. Petitioner also understands that respondent reserves the right, pursuant to §300aa-15(e), to question the good faith and reasonable basis of their claim and to oppose, if appropriate, counsel’s application for fees and costs. Id. Petitioner also stated that respondent did not oppose this motion.

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