Krube v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 23-355V

*************************

* DAVID KRUBE, * Chief Special Master Corcoran

* Petitioner, * Filed: February 28, 2025

* v. *

* SECRETARY OF HEALTH AND * HUMAN SERVICES *

* Respondent. *

* ************************* Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Mary E. Holmes, U.S. Dep’t of Justice, Washington, DC, for Petitioner.

DECISION DISMISSING PETITION1

On March 13, 2023, David Krube filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that he suffered polymyalgia rheumatica (“PMR”) as a result of his receipt of an influenza vaccine on November 4, 2020. Petition (ECF No. 1) at 1. On September 4, 2024, Respondent filed his Rule 4(c) Report recommending that compensation was not appropriate in this matter. See Report, dated Sept. 4, 2024 (ECF No. 32).

I subsequently held a status conference, and at that time informed the Petitioner that claims alleging PMR as a vaccine injury had uniformly failed. See Scheduling Order, dated Sept. 16, 2024 (ECF No. 33). Nevertheless, I set a deadline for Petitioner to submit a brief addressing the issue of Althen Prong One, thereby permitting him to substantiate what new scientific or medical evidence would support the claim.

Petitioner has now filed a motion for a decision dismissing the claim. See Motion, dated Feb. 24, 2025 (ECF No. 36). Petitioner maintains that he has chosen not to proceed forward with his claim. Mot. at 2. Petitioner has been advised that a decision dismissing the petition will result in a judgment against him, and that such a judgment will end all his rights in the Vaccine Program with regard to this specific claim arising from his November 4, 2020 flu vaccine. Id.

Under Vaccine Rule 21(b)(1), a petitioner may request a decision dismissing a petition, even after preparation of Respondent’s Rule 4(c) Report. Under such circumstances, the decision will result in a judgment, although the dismissal will be with prejudice (unless otherwise indicated). Rule 21(b)(1) and (2). Here, I find such a decision appropriate. To be entitled to compensation under the Vaccine Act, a petitioner must demonstrate that he or she 1) suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to his vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See § 13(a)(1)(A) and 11(c)(1). Petitioner has affirmatively represented that he prefers to no longer proceed with his claim, has not offered evidence sufficient to support the claim, and alleges a form of claim that the Program has otherwise not deemed meritorious.

Accordingly, I hereby DISMISS the Petition with prejudice. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision. 3

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master