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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 23, 2019
* * * * * * * * * * * * *
CARRIE GREGORY, * UNPUBLISHED
*
Petitioner, * No. 17-1599V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Dismissal Decision;
AND HUMAN SERVICES, * Influenza (“Flu”); Shoulder Injury
* Related to Vaccine Administration
Respondent. * (“SIRVA”).
* * * * * * * * * * * * *
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Linda S. Renzi, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On October 24, 2017, Carrie Gregory (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that as a result
of an influenza vaccine received in her left shoulder on October 26, 2014, she developed left and
right shoulder injuries. Id. The information in the record, however, does not show entitlement to
an award in the Program.
On July 23, 2019, petitioner filed a motion for a decision dismissing the petition.
Petitioner’s Motion (ECF No. 35). The motion provides that an investigation of the facts and
science supporting petitioner’s case has demonstrated that she will be unable to prove that she is
entitled to compensation in the Vaccine Program. Id. at ¶ 2. In these circumstances, to proceed
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 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.
any further would be unreasonable and would waste the resources of the Court, the Respondent,
and the Vaccine Program. Id. at ¶ 3. Petitioner understands that a decision by the special master
dismissing her petition will result in a judgment against her and that such a judgment will end all
of his rights in the Vaccine Program. Id. at ¶ 4. Petitioner understands that she may apply for
fees and costs once the case is dismissed and judgment is entered against her. Id. at ¶ 5.
Petitioner intends to protect her rights to file a civil action in the future. Therefore, pursuant to
Section 21(a)(2), petitioner intends to elect to reject the Vaccine Program judgment and to
protect any rights to elect to file a civil action in the future. Id. at ¶ 6.
To receive compensation in the Vaccine Program, petitioner must prove either: (1) that
she suffered a “Table Injury,” i.e., an injury beginning within a specified period of time
following receipt of a corresponding vaccine listed on the Vaccine Injury Table, or (2) that she
suffered an injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1).
Furthermore, petitioner must show by preponderant evidence that she has “suffered the residual
effects or complications of such [alleged] illness, disability, injury, or condition for more than six
months after the administration of the vaccine.” § 11(c)(1)(D)(i). In this case, petitioner
received the flu vaccination at issue in her left shoulder. The subsequent medical records reflect
that she did develop a left shoulder injury resembling SIRVA (a “Table Injury”), however, that
appears to have resolved within six months. Petitioner alleges that the left shoulder injury led to
overuse and injury of her right shoulder. However, there is not a clear connection between these
two events. See Respondent’s Report filed October 18, 2018 (ECF No. 22) at 7-8; Scheduling
Order filed April 24, 2019 (ECF No. 29) at 1.
Under the Vaccine Act, the Vaccine Program may not award compensation solely based
on a petitioner’s own claims. Rather, a petitioner must support the claim with either medical
records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records do
reflect that petitioner developed a left shoulder injury resembling SIRVA as listed on the
Vaccine Injury Table. However, the medical records do not support a finding that the left
shoulder injury lasted for more than six months. Petitioner alleges that her later right shoulder
pain was a sequela which was present for more than six months after the administration of the
vaccine. However, the medical records do not support a logical sequence of cause and effect
between the left shoulder injury and the later right shoulder injury. Neither has petitioner
submitted an opinion from a treating physician or other medical expert to draw a connection
between these two events. Therefore, I agree that petitioner has not met her burden of proof.
Therefore, her claim cannot succeed and it must be dismissed. § 11(c)(1)(A).
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2