Strout v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 22-1013V

**************************** CHRIS L. STROUT, as personal * representative of ESTATE OF DIANE * Chief Special Master Corcoran M. STROUT, *

*

Petitioner, * Filed: November 20, 2023

v. *

* SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* **************************** Miriam A. Johnson, Berman & Simmons, PA, Lewiston, ME, for Petitioner.

Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION 1 On August 19, 2022, Chris L. Strout filed a petition for compensation on behalf of his deceased mother, Diane M. Strout, under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges (under the Vaccine Act Table) that Ms. Strout suffered from Guillain-Barré syndrome (“GBS”), which led to her death as a result of an influenza (“flu”) vaccine she received on November 18, 2020. Pet. at 1-2, ECF No. 1.

Following Respondent’s informal assessment and a review of the record, Respondent filed a status report stating that this case is not appropriate for compensation and requesting to file a Rule 4(c) Report in defense of Petitioner’s claim. ECF No. 18. Respondent filed his Rule 4(c) Report on May 17, 2023. ECF No. 20. I subsequently issued an Order to Show Cause for Petitioner’s failure to establish that the onset of Ms. Strout’s GBS occurred within the 3-42 day period prescribed for a GBS Table claim. ECF No. 22. In response to my Order, Petitioner filed a Motion to Voluntarily Dismiss the Petition pursuant to Rule 21(a). ECF No. 24. In his Motion, Petitioner indicated that “[a]n investigation of the facts and science supporting his case has demonstrated to [P]etitioner that he will be unable to prove that he is entitled to compensation in the Vaccine Program.” Id. ¶ 1. Petitioner further indicated that “to proceed further would be unreasonable and would waste the resources of the Court, [ R]espondent, and the Vaccine Program.” Id. ¶ 2. He “understands that a decision by the Special Master dismissing his petition will result in a judgment against him. He has been advised that such a judgment will end all of his rights in the Vaccine Program.” Id. ¶ 3.

To receive compensation under the Program, Petitioner must prove either 1) that Ms. Strout suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). Examination of the record does not disclose preponderant evidence that Ms. Strout experienced the onset of her GBS within 3-42 days of her vaccination or a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that Ms. Strout’s alleged injury was vaccine-caused.

Under the Vaccine Act, a petitioner may not be awarded compensation based on the petitioner’s claims alone. Rather, the petition must be supported by either the medical records or by a medical opinion. Section 13(a)(1). In this case, the record does not contain medical records or a medical opinion sufficient to demonstrate that the vaccinee was injured by a vaccine. For these reasons, in accordance with Section 12(d)(3)(A), Petitioner’s claim for compensation is denied and this case is dismissed for insufficient proof.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this decision. 3

IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master