Myers v. Secretary of Health and Human Services ( 2022 )

In the Anited States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1525V
AND HUMAN SERVICES,
Respondent.
(not to be published)
ok ok Ok OR OK a ok Ok ok ok ok ok oR ok Ok kK KR ok ok KOK RK ROK OK KR OK
*
MELISSA MYERS, ' Chief Special Master Corcoran
*
Petitioner, = Dated: July 25, 2022
*
Vv. * Reissued for Public Availability:
* August 22, 2022
SECRETARY OF HEALTH * -
*
*
*
*
oR KR ok OR ROK Kok OR KOR Ok RR Ok ROOK OK Kk KOR KOK Ok
Melissa Myers, Liberty, MO, pro se Petitioner.
Heather Pearlman, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION!
On June 30, 2021, Melissa Myers filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (“Vaccine Program”),” alleging that she suffered from a
shoulder injury after receipt of a Tdap vaccine administered on September 19, 2018. Petitioner
’ Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(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.
Pursuant to Vaccine Rule 18(b), this Decision was initially filed on July 25, 2022, and the parties were afforded 14
days to propose redactions. The parties did not propose any redactions. Accordingly, this Decision is reissued in its
original form for posting on the court’s website.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
originally had counsel but opted to represent herself pro se in the wake of her attorney’s
withdrawal.
After a status conference held on March 10, 2022, I ordered Petitioner to indicate whether
she wished to proceed with the claim or dismiss it entirely, noting that no documents in support of
the claim had ever been filed. If Petitioner wished to move forward, she was ordered to file medical
records to substantiate her claim by June 30, 2022.
On June 24, 2022, Petitioner informally communicated to Chambers that she wished to
dismiss the claim. To that end, I directed Ms. Myers to file a notice of dismissal pursuant to
Vaccine Rule 21(a). But Ms. Myers did not do so. I then issued an Order on July 11, 2022, for
Petitioner to file a notice voluntarily dismissing the claim, by July 22, 2022, otherwise I would
dismiss her claim sua sponte for failure to adhere to my orders in this case. ECF No. 27. Petitioner
did not file any notice by this deadline, and still has never offered any medical records to support
her claim.
Under Vaccine Rule 21(b), a special master may dismiss a petition for failure of the
petitioner to prosecute or comply with any order of the special master. In this case, Petitioner did
not file the necessary medical records to substantiate her claim, nor did she file a notice asking for
dismissal. In fact, repeatedly failed during the pendency of this case to respond to the deadlines
set by court orders. Under the Vaccine Act, a petitioner may not receive a Vaccine Program award
based solely on her claims alone. Rather, the petition must be supported by either medical records
or by the opinion of a competent physician. Section 13(a)(1). In this case, there is insufficient
evidence in the record for Petitioner to meet her burden of proof. Therefore, Petitioner’s claim
cannot succeed and must be dismissed. Section 11(c)(1)(A).
Accordingly, I hereby DISMISS Petitioner’s case. In the absence of a motion for review
filed pursuant to RCFC Appendix B, and pursuant to Vaccine Rule 21(b)(2), the Clerk of the Court
SHALL ENTER JUDGMENT in accordance with the terms of this Decision.?
IT IS SO ORDERED.
Brian H’ Coréoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.