Halbrook v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: December 10, 2020 * * * * * * * * * * * * *

PAMELA HALBROOK, * UNPUBLISHED *

Petitioner, * No. 19-1572V * v. * Special Master Gowen *

SECRETARY OF HEALTH * Motion for Decision Dismissing Claim; AND HUMAN SERVICES, * Influenza (Flu); Optic Neuritis; * Non-Arteritic Anterior Ischemic Optic Respondent. * Neuropathy. * * * * * * * * * * * * *

Kathleen M. Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.

Ronalda E. Kosh, United States Department of Justice, Washington, DC, for respondent.

DECISION1

On October 9, 2019, Pamela Halbrook (“petitioner”), filed a petition in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioners alleged that she developed optic neuritis as a result of her receipt of an influenza /(flu) vaccination on October 24, 2016. Id. The information in the record, does not establish entitlement to compensation.

On December 10, 2020, petitioner filed a motion for a decision dismissing her petition. Petitioner’s Motion (“Pet. Mot.”) (ECF No. 24). Petitioner understands that a decision dismissing her petition will result in a judgment against her. Id. at ¶ 4. She has been advised that such a judgment will end all of her rights in the Vaccine Program. Id. Petitioner understands that she may apply for fees and costs once her case is dismissed and judgment is entered against her. Id. at ¶ 5. Petitioner’s counsel has contacted respondent’s counsel regarding respondent’s position on this motion and understands that 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. Respondent otherwise does not oppose this motion. Id. Petitioner does intend to protect her rights to file a civil action in the future. Id. at ¶ 6. Therefore, pursuant to 42 U.S.C. § 300aa-21(a)(2), she intends to elect to reject the Vaccine Program judgment against her and elect to file a civil action. Id. To receive compensation in the Vaccine Program, a petitioner has the burden of proving either: (1) 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) an injury that was caused-in-fact by a covered vaccine. 42 U.S.C. §§ 300aa-13(a)(1)(A); 11(c)(1). Here, an examination of the record does not contain persuasive evidence that petitioner suffered a “Table Injury”. Thus, petitioner is limited to alleging causation-in-fact. The record does not contain persuasive evidence that petitioner’s injury was caused in fact or in any way related to the vaccine which she received.

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