Smith v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1008V
Filed: December 6, 2019
UNPUBLISHED
DANESSA SMITH, Special Master Horner
Petitioner, Petitioner’s Motion for Decision
v. Dismissing Petition; Hep B
vaccine; Lichen Planus
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DISMISSAL DECISION1
On July 13, 2018, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that she suffered Lichen Planus as
a result of her receipt of the Hepatitis B vaccination on June 18, 2016. (ECF No. 1.)
On April 23, 2019, respondent filed a Rule 4(c) Report recommending that
compensation be denied. (ECF No. 21.)
On September 23, 2019, petitioner filed a status report indicating that petitioner
was unable to file an expert report and proposing to “inform the court how she wishes to
proceed (i.e. finding an alternative to address the issues outline in respondent’s Rule
4(c) report or voluntarily exiting the program).” (ECF No. 34.) On November 6, 2019,
petitioner filed a further status report, proposing to file a letter from her treating
physician to support her claim. (ECF No. 35.)
However, on December 6, 2019, petitioner filed a Motion for a Decision
Dismissing her Petition, stating that “[a]n investigation of the facts and science
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
supporting her case has demonstrated to petitioner that she will be unable to prove that
she is entitled to compensation in the Vaccine Program.” (ECF No. 36.) Petitioner
further stated that she “understands that a decision by the Special Master dismissing
her petitioner will result in a judgment against her,” and “has been advised that such
judgment will end all of her rights in the Vaccine Program.” (Id.)
To receive compensation in the Vaccine Program, petitioner must prove either
(1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury
Table – corresponding to a covered vaccine, or (2) that she suffered an injury that was
actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy her
burden of proving causation in fact, petitioner must show by preponderant evidence: “(1)
a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of a proximate temporal relationship between vaccination and
injury.” Althen v. Sec’y of Health and Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the special master from
ruling for petitioner based solely on her allegations unsubstantiated by medical records
or medical opinion.
Examination of the record does not disclose any evidence that petitioner suffered
a “Table Injury.” Further, petitioner’s medical records do not support her allegations by
a preponderance of the evidence and she did not file a medical opinion from an expert
in support of her allegations. Accordingly, the undersigned GRANTS petitioner’s
Motion for a Decision Dismissing her Petition and DISMISSES this petition for failure to
establish a prima facie case of entitlement to compensation.
CONCLUSION
This case is now DISMISSED. In the absence of a motion for review filed
pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment
herewith.2
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
2
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
2