Marquez v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: August 5, 2022

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CLAUDIA MARQUEZ, *

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Petitioner, * No. 19-1811V

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v. * Special Master Gowen

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SECRETARY OF HEALTH * Dismissal; Insufficient Proof; AND HUMAN SERVICES, * Severity.

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Respondent. *

* * * * * * * * * * * * * Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington, D.C., for petitioner.

Parisa Tabassian, U.S. Dept. of Justice, Washington, D.C., for respondent.

DECISION DISMISSING PETITION 1

On November 26, 2019, Claudia Marquez (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Program or Program). 2 Petitioner alleged that she suffered from a right Shoulder Injury Related to Vaccine Administration (“SIRVA”) after receiving an influenza (“flu”) vaccination on November 14, 2017. Petition (ECF No. 1). The information in the record, however, does not show entitlement to an award under the Program.

On August 5, 2022, petitioner filed a motion for a decision dismissing the petition. Petitioner’s Motion (“Pet. Mot.”) (ECF No. 38). Petitioner states that “an investigation of the facts and science supporting the claim has demonstrated to the petitioner that she will be unable to provide that she is entitled to compensation in the Vaccine Program.” Pet. Mot. at ¶ 1. In these circumstances, to proceed any further would be unreasonable and would waste the resources of the Court, the respondent and the Vaccine Program. Id. at ¶ 2. Petitioner understands that a decision by the Special Master dismissing her petition will result in a judgment against her. She has been advised that such a judgment will end all of her rights in the Vaccine Program. Id. at ¶ 3. Petitioner also understands that her attorney may apply for attorneys’ fees and costs once his case is dismissed and judgment is entered against her. Id. at ¶ 4. Petitioner intends to protect her rights to file a civil action in the future, and therefore, pursuant to 42 U.S.C. §300aa-21(a)(2), she intends to elect to reject the Vaccine Program judgment against her and elect to file a civil action. Id. at ¶ 5.

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 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 alleging a Table Injury . A prerequisite for eligibility to proceed in the Vaccine Program, is that a petitioner establish she suffered an injury that is sufficiently severe. The petition, affidavit, and supporting evidence must demonstrate that the individual “(i) suffered the residual effects or complications of such illness, disability, injury, or condition for more than six months after the administration of the vaccine.” §11(c)(1)(D). Under the Vaccine Act: “The special master or court may not make [a finding of entitlement] based on the claims of a petitioner alone.” Rather, the petition must be “[s]ubstantiated by medical records or by medical opinion.” 13(a)(1)(A). Petitioner has been unable to demonstrate that she has suffered an injury to her right shoulder after the administration of the November 14, 2017, flu vaccine for more than six months. Therefore, it is appropriate to dismiss petitioner’s claim for insufficient proof of the severity requirement, as well as the alleged Table Injury.

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