Walker v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: May 20, 2021

* * * * * * * * * * ** * TINA WALKER, * Unpublished

* Petitioner, * No. 18-1650V *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Dismissal; Polyneuropathy; AND HUMAN SERVICES, * Influenza (“flu”); Insufficient

* Proof.

Respondent. *

* * * * * * * * * * * * * Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, N.J., for petitioner. Traci R. Patton, U.S. Dept. of Justice, Washington, D.C., for respondent.

DECISION DISMISSING PETITION1

On October 25, 2018, Tina Walker (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program or Program).2 Petitioner alleged that she suffered polyneuropathy as a result of receiving the influenza (“flu”) vaccine on November 5, 2015. Petition (ECF No. 1). The information in the record does not establish entitlement to compensation.

On May 20, 2021, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet. Mot.”) (ECF No. 30). Petitioner states that she understands that dismissing her petition will result in a judgment against her. Id. Additionally, petitioner states she has been advised that such a judgment will end all of her rights, for the vaccine in question in this matter, in the Vaccine Program. Id. Petitioner also understand 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 her claim and to oppose, if appropriate, her application for costs. Id. Petitioner intends to protect her rights to file a civil action in the future. Id.

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