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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1229V
Filed: May 8, 2015
Unpublished
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THOMAS THOMPSON, *
*
Petitioner, *
* Petitioner’s Motion to Dismiss;
v. * Insufficient Proof of Causation;
* Vaccine Not on Vaccine Injury Table;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Maximillian Muller, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner.
Debra Begley, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
Vowell, Chief Special Master:
On December 22, 2014, Thomas Thompson filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq.,2 [the “Vaccine Act” or “Program”]. Petitioner alleged that he suffered a shoulder
injury or brachial neuritis after receiving the influenza vaccine on February 4, 2014.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
Petitioner filed his medical records on January 9, 2015 (see Petitioner’s Exhibits
[“Pet. Exs.”] 1-3), and an initial status conference call was held on January 26, 2015
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it 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. § 3501note (2006)). 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, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).
(see Order, issued Jan. 27, 2015, at 1). I ordered respondent to file a status report
providing her position regarding petitioner’s claim. Id.
On March 27, 2015, respondent filed her status report indicating “the records
reveal[ed] that petitioner did not receive an influenza vaccination in his left arm as
alleged, but rather received an adult pneumonia vaccine in his left arm.” Status Report
at 1 (citing Pet. Ex. 1, p. 118). Respondent further indicated that the records showed
petitioner received the influenza vaccine in his right arm but suffered injury to his left,
not right, shoulder. Id. Because the adult pneumococcal vaccine is not a covered
vaccine,3 respondent argued “the court has no jurisdiction of any claims of injury
associated with this vaccine.” Status Report at 1. Respondent added that she “ha[d]
discussed these issues with petitioner’s counsel and petitioner is currently considering
how he would like to proceed.” Id.
I ordered petitioner to file a status report indicating whether he wished to proceed
with his claim or exit the Vaccine Program. Order, issued Mar. 27, 2015, at 1. I
instructed him to file additional evidence which supports a finding of jurisdiction if
continuing with his claim or the appropriate notice, motion, or stipulation if exiting the
program. Id.
On May 6, 2015, petitioner filed a motion for a decision dismissing his petition.
He agreed that the records indicate he received a vaccine not included on the Vaccine
Injury Table (an adult pneumococcal vaccine) in his left arm. Petitioner’s Motion at 1.
He admitted he “cannot demonstrate by preponderant evidence that his alleged injury
was caused by a vaccine contained on the Vaccine Injury Table . . . [and] to proceed
further would be unreasonable and would waste the resources of the Court, the
respondent, and the Vaccine Program.” Id. at 2.
Petitioner has failed to demonstrate that his injury was caused by a vaccine listed
on the Vaccine Injury Table. Thus, this case is dismissed for insufficient proof.
The clerk of the court is directed to enter judgment in accordance with this
decision.4
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3See, e.g., Bundy v. Sec’y, HHS, No. 12-769V, 2014 WL 348852, at *1 (Fed. Cl. Spec. Mstr. Jan. 8,
2014). Only pneumococcal conjugate vaccines, routinely administered to children, are covered by the
Vaccine Program. Id.4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2