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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1347V
Filed: October 9, 2019
UNPUBLISHED
SUSAN COATS,
Petitioner, Special Processing Unit (SPU);
v. Pneumovax 23 Vaccine; Vaccine Not
Covered Under the Program;
SECRETARY OF HEALTH AND Vaccine Act Entitlement;
HUMAN SERVICES, Special Processing Unit (“SPU”)
Respondent.
Joseph Arthur Mooneyham, Mooneyham Berry & Karow, LLC, Greenville, SC, for
petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION 1
Dorsey, Chief Special Master:
On September 4, 2019, Susan Coats (“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”). Petitioner alleged that she
suffered injuries caused by a pneumococcal polysaccharide vaccine (23-Valent)
administered on May 16, 2017 including sepsis and systemic inflammatory response
1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling 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, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is required 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).
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).
syndrome (“SIRS”). Petition at 1; Ex. 1 at 6. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
An Order to Show Cause was issued on September 9, 2019, wherein it was
noted that pneumococcal polysaccharide vaccines are not covered by the Vaccine
Program. ECF No. 9 at 1-2. Ms. Coats is ordered to file proof of a vaccination or any
documents which establish an injury caused by a vaccine set forth in the Vaccine Injury
Table by October 9, 2019.
On October 1, 2019, petitioner filed Petitioner’s Motion for a Decision Dismissing
her Petition. ECF No. 10. Petitioner indicated in her motion that “[a]n investigation of
the facts and science supporting her case has demonstrated to the 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 judgment against her. She has been
advised that such a judgment will end her rights in the Vaccine Program.” Id.
To be entitled to compensation under the Vaccine Act, a petitioner must
demonstrate that he or she received a vaccine set forth in the Vaccine Injury Table (the
“Table”). See §11(c)(1)(A). Compensation is awarded only to individuals “who have
been injured by vaccines routinely administered to children.” H.R. Rep. 99-908, 1986
U.S.C.C.A.N. 6344 at 3.
“There are two types of pneumococcal vaccines . . . pneumococcal conjugate
and polysaccharide vaccine[s].” Bundy v. Sec’y of Health & Human Servs., 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. See Morrison v. Sec’y of Health & Human Servs., No. 04-1683, 2005 WL
2008245, at *1 (Fed. Cl. Spec. Mstr. July 26, 2005) (describing how and when
pneumococcal conjugate vaccines were added to the Vaccine Table).
Ms. Coats received a pneumococcal polysaccharide vaccine, 23-Valent. Ex. 1 at
6. As such, petitioner is unable to show that she “received a vaccine set forth in the
Vaccine Injury Table.” §11(c)(1)(A). Thus, petitioner cannot receive compensation on a
claim based on a non-covered vaccine through the Vaccine Program, and the petition
must be dismissed. See, e.g., Cielencki v. HHS, No. 15-632V, 2015 WL 10767150, at
*3 (Fed. Cl. Spec. Mstr. Dec. 22, 2015) (dismissing petition that involves Pneumovax).
Petitioner has failed to demonstrate that he was injured by a vaccine covered
under the Vaccine Program. This case is dismissed for failure to state a claim upon
which relief can be granted. The clerk shall enter judgment accordingly. 3
IT IS SO ORDERED.
3
If petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
s/Brian H. Corcoarn
Brain H. Corcoran
Chief Special Master