Shiriak v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION

MAR 8 2021 OSM

U.S. COURT OF FEDERAL CLAIMS In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-1391V Filed: November 18, 2020

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* BEN D. SHIRIAK, *

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* TO BE PUBLISHED

Petitioner, *

* v. *

* Motion to Dismiss; Pneumococcal * Polysaccharide vaccine (PPSV-23)

SECRETARY OF HEALTH AND * HUMAN SERVICES, *

* *

Respondent. *

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Ben D. Shiriak, pro se, Tappahannock, VA, for Petitioner.

Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION GRANTING MOTION TO DISMISS1 Oler, Special Master:

On October 9, 2020, Ben D. Shiriak (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (the “Vaccine Act” or “Program”). The petition alleges that Petitioner suffered from atrial fibrillation, extreme body chills, and chronic arthritis as a result of the pneumococcal polysaccharide vaccine he received on October 12, 2017. Pet. at 1, ECF No. 1.

For the reasons discussed below, Petitioner is unable to demonstrate that he received a vaccine set forth in the Vaccine Injury Table. 42 U.S.C. § 300aa-11(c)(1)(a). Consequently, his petition is DISMISSED.

I. Procedural and Factual History

Petitioner was born in 1939. Pet. at 1. He received the pneumococcal polysaccharide (PPSV-23) vaccine at the office of Dr. Allen Tsui on October 12, 2017, in Tappahannock, Virginia. Ex. 1 at 1. Immediately following the vaccination, Petitioner alleges that he experienced elevated pulse rate and blood pressure. Pet. at 2. He was admitted to the hospital on the same day and diagnosed with atrial fibrillation. Id. Following his hospital discharge, Petitioner began to suffer from chills throughout his body, notably in his joints. Id. Petitioner claims that these chills continue to this day.

On October 15, 2020, this case was assigned to my docket. ECF No. 8. On October 20, 2020, I held a status conference during which I explained to Petitioner that the PPSV-23 vaccine is not a covered vaccine, and that consequently, this Court lacked jurisdiction to adjudicate his claim. See Scheduling Order dated October 22, 2020, ECF No 9. I directed Respondent to file a motion to dismiss by November 5, 2020. Id. Petitioner requested seven days to respond. Id.

On November 5, 2020, Respondent filed the instant Motion to Dismiss, arguing that the Petition “must be dismissed for failure to state a claim upon which relief may be granted, pursuant to RCFC 12(b)(6).” Mot. at 1, ECF No. 13. Petitioner did not file a response.

II. Analysis

To be entitled to compensation under the Vaccine Act, a petitioner must demonstrate that he “received a vaccine set forth in the Vaccine Injury Table.” § 300aa-11(c)(1)(a).

There are two different types of pneumococcal vaccines, the pneumococcal conjugate vaccine and the polysaccharide vaccine. Cielencki v. Sec’y of Health & Hum. Servs., No. 15-632V, 2015 WL 10767150, at *3 (Fed. Cl. Spec. Mstr. Dec. 22, 2015). The Vaccine Program only covers pneumococcal conjugate vaccines, which are routinely administered to children. The Pneumovax 23 vaccine is a polysaccharide vaccine and thus is not a vaccine set forth in the Vaccine Injury Table. 42 U.S.C. § 300aa-11(c)(1)(a).

Because Petitioner has alleged that he was injured by the PPSV-23 vaccine, he cannot demonstrate that he “received a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa- 11(c)(1)(a). Therefore, his petition must be dismissed for failure to state a claim upon which relief may be granted.

III. Conclusion

For the reasons explained above, Respondent’s motion to dismiss is GRANTED and Mr. Shiriak’s petition is DISMISSED. The clerk shall enter judgment accordingly.3

A copy of this decision shall be mailed via USPS to Petitioner at:

BEN D. SHIRIAK P.O. Box 862 Tappahannock, VA 22560 IT IS SO ORDERED.

_______________________ Katherine E. Oler Special Master