Horton v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: October 27, 2021 *************************

TRISTEN HORTON, * No. 19-262V *

Petitioner, * Special Master Sanders v. * *

SECRETARY OF HEALTH * Dismissal; Human Papillomavirus AND HUMAN SERVICES, * (“HPV”) Vaccine; Aplastic Anemia *

Respondent. * * *************************

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Lynn C. Schlie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION1

On February 15, 2019, Tristen Horton (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that he suffered from aplastic anemia due to a human papillomavirus (“HPV”) vaccine administered on September 20, 2017. Pet. ¶¶ 1, 15, ECF No. 1. Respondent filed his Rule 4(c) report on February 13, 2020, recommending against compensation, and the parties proceeded to file expert reports. See ECF Nos. 25, 34, 37, 42–44, 46, 54–55.

On September 9, 2021, Petitioner filed a motion for a decision dismissing his petition. ECF No. 57. Petitioner stated that “he would like to opt out of the Vaccine Program” because “[h]e wishes to pursue a third party action in district court against Merck directly.” Id. at 2. Petitioner continued that “[t]his choice should not be viewed in any way that Petitioner does not believe in the merits of his claim or that [his] injuries are not a result of [the HPV vaccine].” Id. He stated that he “needs a judgment from the Vaccine Program so that he may reject said judgment and submit his election to opt out.” Id. He continued that “given the course of [HPV vaccine] cases like Petitioner’s in the Vaccine Program, [he] also does not anticipate prevailing on the merits in the Program on this case.” Id. Petitioner noted that he contacted Respondent regarding this motion and that Respondent did not take a position. Id.

To receive compensation under the Program, Petitioner must prove either (1) that he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that he 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 Petitioner suffered a “Table Injury.” At this time, the information in the record, however, does not show entitlement to an award by a preponderance of the evidence based on causation in fact. Further, a closer review of the record is not warranted in light of Petitioner’s motion for a decision dismissing his petition. Therefore, this case must be dismissed. The Clerk shall enter judgment accordingly.3

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master