Halbrook v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 10, 2020
* * * * * * * * * * * * *
PAMELA HALBROOK, * UNPUBLISHED
*
Petitioner, * No. 19-1572V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Decision Dismissing Claim;
AND HUMAN SERVICES, * Influenza (Flu); Optic Neuritis;
* Non-Arteritic Anterior Ischemic Optic
Respondent. * Neuropathy.
* * * * * * * * * * * * *
Kathleen M. Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.
Ronalda E. Kosh, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On October 9, 2019, Pamela Halbrook (“petitioner”), filed a petition in the National
Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioners alleged that she
developed optic neuritis as a result of her receipt of an influenza /(flu) vaccination on October
24, 2016. Id. The information in the record, does not establish entitlement to compensation.
On December 10, 2020, petitioner filed a motion for a decision dismissing her petition.
Petitioner’s Motion (“Pet. Mot.”) (ECF No. 24). Petitioner understands that a decision
dismissing her petition will result in a judgment against her. Id. at ¶ 4. She has been advised
that such a judgment will end all of her rights in the Vaccine Program. Id. Petitioner
understands that she may apply for fees and costs once her case is dismissed and judgment is
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 opinion 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 National Vaccine Injury Compensation Program is set forth in 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-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
entered against her. Id. at ¶ 5. Petitioner’s counsel has contacted respondent’s counsel regarding
respondent’s position on this motion and understands that respondent expressly reserves the
right, pursuant to 42 U.S.C. § 300aa-15(e), to question the good faith and reasonable basis of the
claim and to oppose, if appropriate, the application for fees and costs. Id. Respondent otherwise
does not oppose this motion. Id. Petitioner does intend to protect her rights to file a civil action
in the future. Id. at ¶ 6. Therefore, pursuant to 42 U.S.C. § 300aa-21(a)(2), she intends to elect
to reject the Vaccine Program judgment against her and elect to file a civil action. Id.
To receive compensation in the Vaccine Program, a petitioner has the burden of proving
either: (1) 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 (a “Table injury”) or (2) an
injury that was caused-in-fact by a covered vaccine. 42 U.S.C. §§ 300aa-13(a)(1)(A); 11(c)(1).
Here, an examination of the record does not contain persuasive evidence that petitioner suffered
a “Table Injury”. Thus, petitioner is limited to alleging causation-in-fact. The record does not
contain persuasive evidence that petitioner’s injury was caused in fact or in any way related to
the vaccine which she received.
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