Hong v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1046V
Filed: February 1, 2021
UNPUBLISHED
GIL HONG, on behalf of E.K., Special Master Horner
Petitioner,
v. Petitioner’s Motion for Decision
Dismissing Petition; Human
SECRETARY OF HEALTH AND Papilloma Vaccine; HPV
HUMAN SERVICES, Vaccine; Seizures; Focal
Epilepsy
Respondent.
Mark Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On July 18, 2019, petitioner filed a claim, on behalf of her minor child, E.K.,
under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),
alleging that E.K. suffered seizures and focal epilepsy as a result of his receipt of the
human papilloma virus (“HPV”) vaccination on July 20, 2016. (ECF No. 1.) On July 20,
2020, respondent filed his Rule 4(c) report, recommending against compensation.
(ECF No. 21.) Petitioner was then afforded an opportunity to file an expert report to
support her claim.
On January 29, 2021, petitioner filed a Motion for a Decision Dismissing her
Petition. (ECF No. 24.) Petitioner indicated that “[p]etitioner understands that a
decision by the Special Master dismissing her petition will result in a judgment against
her. [Petitioner] has been advised that such a judgment will end all of her rights, for the
vaccine(s) in question in this matter, in the Vaccine Program. Petitioner understands
that she may apply for fees and costs once her case is dismissed and judgment is
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
entered against her.” (Id. at 1.) Additionally, petitioner intends to reserve her rights to
file a civil action in the future.
To receive compensation in the Vaccine Program, petitioner must prove either
(1) that E.K. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury
Table – corresponding to a covered vaccine, or (2) that he suffered an injury that was
actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy his
burden of proving causation in fact, petitioner must show by preponderant evidence: “(1)
a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of a proximate temporal relationship between vaccination and
injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from
ruling for petitioner based solely on his allegations unsubstantiated by medical records
or medical opinion.
Petitioner’s medical records do not support her allegations by a preponderance
of the evidence and she did not file a medical opinion from an expert in support of her
allegations. Accordingly, the undersigned GRANTS petitioner’s Motion for Decision
Dismissing Petition and DISMISSES this petition for failure to establish a prima facie
case of entitlement to compensation.
CONCLUSION
This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision.2
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2