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


Menu:
  •                                                                             REISSUED FOR PUBLICATION
    DEC 20 2019
    OSM
    U.S. COURT OF FEDERAL CLAIMS
    3Jn tbe Wntteb $)tates (!Court of jfeberal (!Claims
    OFFICE OF SPECIAL MASTERS
    No. 19-628V
    Filed: October 1, 2019
    ************* *
    S.A. andH.A., Parents ofA.A., on                  *        Dismissal; Hepatitis B ("Hep B")
    behalf ofA.A.,                                    *        RotaTeq, Diphtheria-Tetanus-Acellular-
    Petitioners,                         *        Pertussis ("DTaP"), Haemophilus
    *        Influenzae Type B ("Hib") Vaccines;
    V.                                                *        Inactivated Polio Vaccine; Immune
    *        Dysfunction; Reactive Airway Disease;
    SECRETARY OF HEALTH                               *        Asthma
    AND HUMAN SERVICES,                               *
    *
    Respondent.                       *
    * * * * * * * * * * * * *                         *
    Pro se, Evanston, IL, for petitioners.
    Althea Davis, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
    DECISION 1
    Roth, Special Master:
    On April 22, 2019, petitioners filed a petition for Vaccine Compensation in the National
    Vaccine Injury Compensation Program ("the Program"),2 on behalf of their minor child, A.A.
    Petitioners alleged that the hepatitis B ("Hep B"), Prevnar 13, RotaTeq, diphtheria-tetanus-
    acellular pertussis ("DTaP"), inactivated polio vaccine ("IPV"), and haemophilus influenzae type
    B ("Hib") vaccines A.A. received on April 8, 2016 caused A.A. to develop immune dysfunction,
    reactive airway disease, and asthma. The information in the record, however, does not show
    entitlement to an award under the Program. On September 9, 2019, petitioners filed a request for
    withdrawal and censorship. ECF No. 19. In this request, petitioners requested that their case be
    1
    Although this Decision has been formally designated "unpublished," it will nevertheless be posted on the
    Court of Federal Claims's website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-
    347, 
    116 Stat. 2899
    , 2913 (codified as amended at 
    44 U.S.C. § 3501
     note (2006)). This means the Decision
    will be available to anyone with access to the internet. However, the parties may object to the Decision's
    inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule l 8(b ), each party
    has fourteen days within which to request 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). Otherwise, the whole Decision will be available to the public. 
    Id.
    2The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
    
    100 Stat. 3755
    , codified as amended, 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.
    dismissed and that A.A. 's name be censored from the public record. Id. This request will be
    interpreted as a Motion for a Dismissal Decision. After a dismissal decision is issued, petitioners
    will have 14 days to file a Motion for Redaction explaining why redaction of A.A.' s initials is
    warranted, if necessary. Petitioners are advised that the only information that will be publicly
    available is this dismissal decision.
    To receive compensation under the Program, petitioners must prove either 1) that A.A.
    suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table- corresponding
    to his vaccination, or 2) that A.A. suffered an injury that was actually caused by a vaccine. See §§
    13(a)(l)(A) and 1l(c)(l). The petition in this matter may have not been timely filed pursuant to 42
    U.S.C. § 300aa-16(a)(l), which requires that petitions be filed within three years of the date of
    vaccination or the first manifestation of injury. The record indicates A.A. received the allegedly
    causal vaccination on April 8, 2016 but the petition was not formally filed until April 22, 2019 -
    approximately 14 days out of time. Given the vague nature of A.A.' s alleged injuries, it is unclear
    as to when onset of these injuries began. Absent clear evidence of onset, petitioners' statute of
    limitations deadline is based on the date of vaccination. Further, an examination of the record did
    not uncover any evidence that petitioner suffered a "Table Injury." The record also does not contain
    persuasive evidence indicating that petitioner's alleged injury was vaccine-caused or in any way
    vaccine-related.
    Under the Act, petitioners may not be given a Program award based solely on the
    petitioners' claims alone. Rather, the petition must be supported by either medical records or by
    the opinion of a competent physician.§ 13(a)(l). In this case, because there are insufficient medical
    records supporting petitioner's claim, a medical opinion must be offered in support. Petitioners,
    however, have offered no such opinion that supports a finding of entitlement.
    Accordingly, it is unclear from the record, but it appears that the petition was not timely
    filed pursuant to 42 U.S.C. § 300aa-16(a)(l). Additionally, petitioners have failed to demonstrate
    either that A.A. suffered a "Table Injury" or that A.A.' s injuries were "actually caused" by a
    vaccination. Thus, this case is dismissed for insufficient proof and failure to file a claim within
    the statutorily prescribed timeframe. The Clerk shall enter judgment accordingly.
    The Clerk's Office is directed to send this decision to petitioners at the following address
    via certified and regular mail.
    IT IS SO ORDERED.
    nA TE, 1    o/il /;!otg                        ~/~ e_OQu >- •
    Mindy Michaels Roth
    Special Master
    2
    

Document Info

Docket Number: 19-628

Judges: Mindy Michaels Roth

Filed Date: 12/20/2019

Precedential Status: Non-Precedential

Modified Date: 12/20/2019