Swint-Moore v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 27, 2022
* * * * * * * * * * * * * * *
AMANDA SWINT-MOORE and * No. 18-1112V
MICHAEL MOORE, as Parents and Next *
Friends of M.A.M., a minor, *
*
Petitioners, * Special Master Sanders
*
v. *
* Dismissal; Insufficient Proof; Diphtheria-
SECRETARY OF HEALTH * Tetanus-Acellular Pertussis (“DTaP”);
AND HUMAN SERVICES, * Haemophilus Influenza Type B (“HiB”);
* Pneumococcal Conjugate (“PCV”) Vaccines;
* DYRK1A Mutation; Seizures; Developmental
Respondent. * Delay
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Forrest E. Jackson, Jackson Law Firm, PLLC, Chattanooga, TN, for Petitioners.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent
DISMISSAL 1
On July 30, 2018, Amanda Swint-Moore and Michael Moore (“Petitioners”) filed a petition
for compensation on behalf of a minor child, M.A.M. under the National Vaccine Injury
Compensation Program 2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012).
Petitioners alleged that M.A.M. developed, or suffered a significant aggravation of, seizures and/or
developmental delay as a result of the haemophilus influenza type B (“HiB”), pneumococcal
conjugate (“PCV”), and diphtheria-tetanus-acellular pertussis (“DTaP”) vaccines she received on
July 30, 2015. Pet. at 1, ECF No. 1. The information in the record, however, does not show
entitlement to an award under the Program.
On June 24, 2022, Petitioners filed a motion for a decision voluntarily dismissing their
petition. ECF No. 39. In their motion, Petitioners stated that “[a]lthough [they] continue to
1
This Decision shall be posted 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). This means the Decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted Decision. If, upon review, the I
agree that the identified material fits within the requirements of that provision, such material will be deleted
from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act”
or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
sincerely believe that M.A.M.’s injury is vaccine-related, they acknowledge that, despite a diligent
search, they are not able to obtain an expert [] to support the claim.” Id. ¶ 1. They continued that
“Petitioners acknowledge that without an expert report, they will not be able to prove that M.A.M.
is entitled to compensation” in the Program. Id. Petitioners indicated that “[i]n these circumstances,
[] to proceed further would be unreasonable and would waste the resources of the Court,
[R]espondent, and the Vaccine Program.” Id. ¶ 2. Respondent indicated no objection to Petitioners’
motion. Id. ¶ 4.
To receive compensation under the Program, Petitioners must prove either (1) that M.A.M.
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that she suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that M.A.M.
suffered a “Table Injury.” Further, the record does not contain persuasive evidence that M.A.M.’s
alleged injuries were caused-in-fact by her July 30, 2015 vaccinations.
Under the Act, petitioners may not be given a Program award based solely on their claims
alone. Rather, the petition must be supported by medical records or the opinion of a competent
physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioners’ claim
by preponderant evidence, and at this time, Petitioners have not filed a supportive opinion on
causation from an expert witness. Therefore, this case must be dismissed for insufficient proof.
The Clerk shall enter judgment accordingly. 3
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
2