Uhl v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: December 14, 2020

* * * * * * * * * * * * * ROBERT UHL, * Unpublished

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Petitioner, * No. 18-1823V

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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. *

* * * * * * * * * * * * * Harrison W. Long, Rawls Law Group, Richmond, VA, for petitioner.

Jennifer L. Reynaud, U.S. Department of Justice, Washington, D.C., for respondent.

DISMISSAL DECISION1

On November 28, 2018, Robert Uhl (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program or Program).2 Petitioner alleged that he suffered Guillain-Barré Syndrome (“GBS”) as a result of receiving the influenza vaccine on November 13, 2016. Petition (ECF No. 1). The information in the record does not establish entitlement to compensation.

On December 14, 2020, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet. Mot.”) (ECF No. 39). Petitioner states that he has been unable to retain an expert in this matter, which has demonstrated that he will be unable to prove entitlement and to proceed further would be unreasonable and waste the resources of the Court, the respondent and the Vaccine program. Pet. Mot. at ¶ 1-2. Petitioner understand that dismissing his petition will result in a judgment against him and has been advised that such a judgment will end all of his rights, for the vaccine in question in this matter, in the Vaccine program. Pet. Mot. at ¶ 3. Petitioner also understands that his attorney may apply for attorneys’ fees and costs once his case is dismissed and judgment is entered against him. Id. at ¶ 4. Petitioner also understands that respondent reserves the right, pursuant to §300aa-15(e), to question the good faith and reasonable basis of his claim and to oppose, if appropriate, his application for costs. Id. Petitioner intends to protect his rights to file a civil action in the future. Id. at ¶ 5.

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 his 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 has not presented an expert opinion to 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