Rayner v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-417V
Filed: January 27, 2015
[Not to be published]
***********************
KATRENA RAYNER, *
*
Petitioner, * Special Master Dorsey
v. *
* Dismissal; Tetanus-Diptheria
* vaccine; Meningococal Vaccine;
SECRETARY OF HEALTH * Human papillomavirus Vaccine;
AND HUMAN SERVICES, * Influenza Vaccine; Seizures;
* Migraines
Respondent. *
***********************
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA for petitioner.
Glenn A. MacLeod, U.S. Department of Justice, Washington, DC for respondent.
DECISION1
On June 25, 2013, petitioner filed a petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program [“the Program”],2 alleging that Tetanus-
Diptheria (“TD”), meningococcal, and human papillomavirus (“HPV”) vaccinations on
July 28, 2010 caused her to develop neurological injuries. Petition at ¶ 1, 2. On January 8,
2014, petitioner filed an amended petition alleging that a series of vaccinations, TD,
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims'
website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
I agree that the identified material fits within the requirements of that provision, I will delete
such material from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter
“Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.
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meningococcal, HPV and influenza (“flu”) vaccine, caused her to develop migraines and
seizures. Amended Petition at ¶ 3, 7, 29.
Respondent filed a Rule 4(c) report on February 7, 2014, stating that this case is
not appropriate for compensation. Respondent’s Vaccine Rule 4(c) Report at 2.
Respondent stated that petitioner failed to prove by preponderant evidence that her
migraines and seizures were caused-in-fact by any of her vaccinations. Id. at 9-16.
Respondent argued that the evidence produced to date fails to demonstrate a reasonable
basis for moving forward and states that the petition must be dismissed. Id. at 16.
On January 16, 2015, petitioner moved for a decision dismissing the petition
pursuant to Rule 21(a). In her motion, petitioner states that “[she] has been unable to
secure further evidence required by the court to prove entitlement to compensation in the
Vaccine Program.” Motion at ¶ 1. Petitioner states that she understands that a decision
by the undersigned will result in a judgment against her, and that such a judgment will
end all rights in the Vaccine Program. Id at ¶ 2.
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 her vaccinations, or 2) that she suffered an injury that was actually
caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did
not uncover any evidence that petitioner suffered a “Table Injury.” Further, the record
does not contain persuasive evidence indicating that petitioner’s alleged injuries were
caused by any of the alleged vaccinations.
Under the Act, petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical
records or by the opinion of a competent physician. § 13(a)(1). In this case, because
there are insufficient medical records supporting petitioner’s claim, a medical opinion
must be offered in support. Petitioner, however, has offered no such opinion that
supports a finding of entitlement.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that she suffered a “Table Injury” or that her injuries were “actually
caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The
Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
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