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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 7, 2020
* * * * * * * * * * * * * * * * * * *
KATHLEEN SPAIN, * UNPUBLISHED
*
Petitioner, * No. 18-737V
v. *
* Special Master Dorsey
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Petitioner’s Motion for Decision Denying
* Compensation; Diphtheria-Tetanus-acellular
Respondent. * Pertussis (“DTaP”) Vaccine; Optic Neuritis
* (“ON”).
* * * * * * * * * * * * * * * * * * *
Diana L. Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for petitioner.
Glenn MacLeod, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On May 24, 2018, Kathleen Spain (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“the Program”)2 alleging that she received
a Diphtheria-Tetanus-acellular Pertussis (“DTaP”) vaccination on May 15, 2017, and thereafter
developed optic neuritis (“ON”). Petition at 1-2. The information in the record, however, does
not show entitlement to an award under the Program.
On February 7, 2020, petitioner moved for a decision denying compensation, stating that
“[p]etitioner has filed all evidence Petitioner believes is relevant to this matter and does not
intend to file further evidence in support of Petitioner’s case,” and thus petitioner “waives the
1
Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it 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),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 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.
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right to any hearing or further proceedings in this matter” and “moves for a decision denying
compensation.” Petitioner’s Motion for Decision Denying Compensation at ¶¶ 1-3. Petitioner
states that she understands that a decision by the Special Master will result in a judgment against
her, and that she has been advised that such a judgment will end all of her rights under the
Vaccine Act. Id. at ¶ 4. Petitioner states that she intends to protect her right to file a civil action.
Id. at ¶ 6.
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 actually caused by the vaccination.
See §§ 13(a)(1)(A) and 11(c)(1). The records submitted by petitioner show that she does not
meet the statutory requirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to
compensation. The Federal Circuit has explained that the eligibility requirements in Section
11(c) are not mere pleading requirements or matters of proof at trial, but instead are “threshold
criteri[a] for seeking entry into the compensation program.” Black v. Sec’y of Health & Human
Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).
Accordingly, in light of petitioner’s motion and a review of the record, the undersigned
finds that petitioner is not entitled to compensation. Thus, this case is dismissed. The Clerk
shall enter judgment accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
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