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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 1, 2020
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AMANDA JO KILGUS, * No. 18-513V
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Petitioner, * Special Master Sanders
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v. *
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SECRETARY OF HEALTH * Dismissal; Insufficient Proof;
AND HUMAN SERVICES, * Tetanus and Diptheria (“Td”) Vaccine;
* Anaphylaxis; Brachial Neuritis.
Respondent. *
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Nathan P. Powell, Webb, Tanner & Powell, P.C., Lawrenceville, GA, for Petitioner
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent
DISMISSAL 1
On April 9, 2018, Amanda Kilgus (“Petitioner”) filed a petition for compensation under the
National Vaccine Injury Compensation Program 2 (“Vaccine Program” or “Program”). 42 U.S.C. §
300aa-10 to 34 (2012). Petitioner alleges that she suffered “injuries, including anaphylaxis or
anaphylactic shock and brachial neuritis,” as a result of a tetanus and diphtheria (“Td”) vaccine that she
received on September 10, 2016. Pet. at 1, ECF No. 1. The information in the record, however, does
not show entitlement to an award under the Program.
On September 25, 2019, Petitioner filed an unopposed motion for a decision dismissing her
petition. ECF No. 29. In her motion, Petitioner conceded that “[a]n investigation of the facts and
science supporting her case has demonstrated to petitioner that she will be unable to prove that she is
entitled to compensation in the Vaccine Program.” Id. at 1. She continued, “to proceed further would
be unreasonable and would not provide an efficient use of the resources of the Court, the [R]espondent
and the Vaccine Program.” Id. Respondent had no objection to Petitioner’s motion. Id. at 1-2.
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).
To receive compensation under the Program, Petitioner must prove either (1) that she 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 caused by a vaccine. See §§ 13(a)(1)(A),
11(c)(1). An examination of the record did not uncover any evidence that Petitioner suffered a “Table
Injury.” Further, the record does not contain persuasive evidence that Petitioner’s alleged injury was
caused by the flu vaccine.
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 Petitioner’s claim, and Petitioner has
not filed a supportive opinion 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