Flores-Ayala v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: June 30, 2021

* * * * * * * * * * * * * UNPUBLISHED BELARMINA FLORES-AYALA, *

* No. 21-1163V

Petitioner, *

v. * Special Master Gowen

* SECRETARY OF HEALTH * Order Concluding Proceedings; Notice of AND HUMAN SERVICES, * Voluntary Dismissal; Vaccine Rule 21(a);

* Non-Covered Pneumococcal Polysaccharide Respondent. * Vaccine (Pneumovax); Ineligibility

* * * * * * * * * * * * * for Vaccine Program. Belarmina Flores-Ayala, Chowchilla, CA, pro se petitioner.

Daniel A. Principato, United States Department of Justice, Washington, DC, for respondent.

ORDER CONCLUDING PROCEEDINGS1

On April 2, 2021, Belarmina Flores-Ayala (“petitioner”), acting pro se, filed a petition in the National Vaccine Injury Compensation Program.2,3 Petition (ECF No. 1). On June 4, 2021, I held a telephonic status conference with petitioner as well as respondent’s counsel. The status conference was digitally recorded. See Scheduling Order (ECF No. 12).

As noted in the prior scheduling order, the petition concerns petitioner’s receipt of a pneumococcal polysaccharide (“pneumococcal 23,” “PPSV23,” or “Pneumovax”) vaccine administered in her left arm, followed by well-documented injuries to her left arm. The filed medical records reflect and petitioner confirmed (in the petition and during the status conference) that the pneumococcal polysaccharide vaccine was administered in her left arm.

During the status conference, I explained that a petitioner is only eligible to pursue a claim in the Vaccine Program for a vaccine set forth in the Vaccine Injury Table (the “Table”). See Section 11(c)(1)(A); 42 C.F.R. § 100.3 (2017). The Table only includes vaccines which the Centers for Disease Control and Prevention (“CDC”) recommends for routine administration to children. The CDC currently recommends that children receive pneumococcal conjugate vaccines, but not polysaccharide-type pneumococcal vaccines like petitioner received. 66 Fed. Reg. 28, 166-01, 2001 WL 535250 (May 22, 2001); see also Morrison v. Sec’y of Health & Human Servs., No. 04-1683V, 2005 WL 2008245, at *1 (Fed. Cl. Spec. Mstr. July 26, 2005) (describing how and when pneumococcal conjugate vaccines were added to the Vaccine Table).

I explained that petitioner is not eligible to pursue a claim in the Vaccine Program. I explained that petitioner may dismiss her claim which will result in the entry of judgment and allow her to pursue a separate claim outside of the Vaccine Program, for example, against the vaccine administrator. Alternatively, she may withdraw her claim and preserve her right to seek to reopen her claim, if pneumococcal polysaccharide vaccines are added to the Table, in the future. 2 Petitioner chose the second option. Therefore, I ordered petitioner to file a Notice of Voluntary Dismissal pursuant to Vaccine Rule 21(a), which was attached to the Scheduling Order issued on June 4, 2021. Petitioner’s deadline to file the notice of voluntary dismissal was June 21, 2021. However, petitioner has not filed that notice or any other materials and she has not contacted my chambers. The scheduling order noted that if petitioner did not adhere to this deadline, her claim would likely be dismissed based on the conversation during the status conference.

Petitioner’s statements during the status conference on June 4, 2021, are hereby construed as petitioner’s notice of voluntary dismissal pursuant to Vaccine Rule 21(a).

Accordingly, pursuant to Vaccine Rule 21(a), the above-captioned claim is dismissed without prejudice. The Clerk of the Court is hereby instructed that judgment shall not enter pursuant to Vaccine Rule 21(a).

IT IS SO ORDERED.

________________________ Thomas L. Gowen Special Master