Mendoza v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-1428V UNPUBLISHED

SALDINA MENDOZA,

Chief Special Master Corcoran Petitioner, v.

Filed: August 6, 2021 SECRETARY OF HEALTH AND HUMAN SERVICES, Motion for decision; Dismissal;

Tdap Vaccine; Guillain-Barré Respondent. syndrome (“GBS”)

Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.

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

DECISION1 On June 3, 2021, Saldino Mendoza filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34,2 (the “Vaccine Act”).3 Mr. Mendoza alleged that he developed Guillain-Barré syndrome (“GBS”) from an Tdap vaccine he received on June 7, 2018. ECF no. 1.

On July 27, 2021, Mr. Mendoza filed a motion for a decision dismissing his petition. ECF no. 7. For the reasons set forth below, Mr. Mendoza’s motion is GRANTED, and this case is DISMISSED.

In his motion, Mr. Mendoza noted that he filed this claim to preserve the statute of limitations and did not file complete medical records with the petition. The PAR Initial Order required Mr. Mendoza to file all the statutorily required documents, including complete medical records supporting the vaccination, pre-vaccination treatment, and post-vaccination treatment. ECF No. 5. Mr. Mendoza received an extension of time but did not file any additional documents to comply with the PAR Initial Order.

On July 27, 2021, Mr. Mendoza filed a motion for a decision dismissing his petition stating that “After further investigation of the facts and science supporting his case have demonstrated to Petitioner that he will be unable to prove that he is entitled to compensation in the Vaccine Program.” ECF No. 7.

To receive compensation under the National Vaccine Injury Compensation Program, a petitioner must prove either 1) that the vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee suffered an injury that was actually caused by a vaccine. See §§ 300aa—13(a)(1)(A) and 11(c)(1). Mr. Mendoza alleged a Non-Table claim, i.e., that his injury, GBS, was actually caused by the Tdap vaccination.

Under the Vaccine Act, a petitioner may not receive compensation based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 300aa—13(a)(1). For a Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal Circuit in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (2005): “(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 proximate temporal relationship between vaccination and injury.”

Initially, Mr. Mendoza has not filed complete medical records as a preliminary statutory requirement to compensation in the Vaccine Program. In regard to the requirements of a Non-Table claim, he has not submitted sufficient evidence to establish the Althen prongs, such as an expert report proposing a medical theory. Moreover, Mr. Mendoza admitted in his motion for a decision that he will not be able to establish entitlement to compensation.

Thus, Petitioner has failed to establish entitlement to compensation in the Vaccine Program. This case is dismissed for insufficient proof. The clerk shall enter judgment accordingly.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

4If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”