Alexander v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: December 15, 2020

************************* KERSTINA ALEXANDER, on behalf * No. 18-770V of her minor child, M.A., *

* Petitioner, * Special Master Sanders

v. *

*

SECRETARY OF HEALTH * Dismissal; Insufficient Proof; Hepatitis B AND HUMAN SERVICES, * Vaccine; Pneumococcal Vaccine (“Prevnar

* 13”); DTP-b Vaccine (“Pentacel”); Rotavirus

Respondent. * Vaccine; Death

************************* Jonathan J. Svitak, Shannon Law Group, Woodbridge, IL, for Petitioner.

Voris E. Johnson, U.S. Department of Justice, Washington, DC, for Respondent.

DISMISSAL1 On May 31, 2018, Kerstina Alexander (“Petitioner”), on behalf of her minor child, M.A., filed a petition for compensation under the National Vaccine Injury Compensation Program 2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that M.A. died due to a Hepatitis B vaccine he received on February 2, 2016; a Hepatitis B vaccine, pneumococcal vaccine (“Prevnar 13”), DTP-b vaccine (“Pentacel”), and a Rotavirus vaccine he received on March 23, 2016; and Prevnar 13, Pentacel, and Rotavirus vaccines he received on May 26, 2016. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.

On December 2, 2020, Petitioner filed an unopposed motion for a decision dismissing her petition. See ECF No. 40. In her motion, Petitioner conceded that “[a]n investigation of the facts and science supporting [sic] has demonstrated to the Petitioner that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. at 1. She continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the Respondent, 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 she suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that she 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 M.A. suffered a Table injury. Further, the record does not contain persuasive evidence that M.A.’s death was caused by any or all of the vaccines he received.

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