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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0865V
Filed: October 3, 2019
UNPUBLISHED
DONNA SKWIAT,
Petitioner’s Motion for a Decision
Petitioner, Dismissing Petition; Influenza (Flu)
v. Vaccine; Shoulder Injury Related to
Vaccine Administration (SIRVA);
SECRETARY OF HEALTH AND Vaccine Act Entitlement; Denial
HUMAN SERVICES, Without Hearing; Special Processing
Unit (SPU)
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION 1
Corcoran, Chief Special Master:
On June 19, 2018, Donna Skwiat (“petitioner”) 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”).3 Petitioner alleges that she suffered left
shoulder injuries related to vaccine administration (“SIRVA”) caused in fact by the
influenza vaccination she received on November 3, 2015. Petition at 1, ¶¶ 2, 15. The
information in the record does not show entitlement to an award under the Program.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 (2012).
3 The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
On October 1, 2019, petitioner moved for a decision dismissing her petition,
acknowledging that insufficient evidence exists to demonstrate entitlement to
compensation. (ECF No. 30). Petitioner indicated in her motion that “[a]n investigation
of the facts and science supporting her case has demonstrated to petitioner that she
will be unable to prove that she is entitled to compensation in the vaccine Program.”
Id. at ¶ 1. Petitioner further indicated that she “understands that a decision by the
Special Master dismissing her petition will result in a judgement against her.
[Petitioner] has been advised that such a judgment will end all of her rights in the
Vaccine Program.” Id. at ¶ 3.
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 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). Examination of the
record does not disclose any evidence that petitioner suffered a “Table Injury.” Further,
the record does not contain a medical expert’s opinion or any other persuasive evidence
indicating that petitioner’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. § 13(a)(1). In this case, the record does not
contain medical records or a medical opinion sufficient to demonstrate that petitioner
was injured by a vaccine. For these reasons, and in accordance with § 12(d)(3)(A),
petitioner’s claim for compensation is DENIED and this case is DISMISSED for
insufficient proof. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master