Leach v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: June 30, 2022

************************* DIANNE LEACH, * No. 20-1578V

* Petitioner, * Special Master Sanders

v. *

*

SECRETARY OF HEALTH * Dismissal; Insufficient Proof; Influenza AND HUMAN SERVICES, * (“Flu”) Vaccine; Chronic Inflammatory

* Demyelinating Polyneuropathy (“CIDP”) Respondent. *

*

************************* Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Nancy Tinch, U.S. Department of Justice, Washington, DC, for Respondent.

DISMISSAL1 On November 12, 2020, Dianne Leach (“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 she suffered from chronic inflammatory demyelinating polyneuropathy (“CIDP”) due to an influenza (“flu”) vaccine administered on November 16, 2017. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.

On May 23, 2022, Petitioner filed a motion for a decision dismissing her petition. ECF No. 25. In her motion, Petitioner stated that “[a]n investigation of the facts and science supporting her case has demonstrated to [P]etitioner that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. ¶ 1. She continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the respondent and [the] Vaccine Program.” Id. ¶ 2. Respondent had no objection to Petitioner’s motion. Id. ¶ 4.

To receive compensation under the Program, Petitioner must prove either (1) that she suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that she 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 evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Petitioner’s alleged injuries were caused by the flu vaccine.

Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and at this time, Petitioner has not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3

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