Estate of James Leroy Doebler v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1331V
UNPUBLISHED
ESTATE OF JAMES LEROY Chief Special Master Corcoran
DOEBLER and STATUTORY DEATH
BENEFICIEARIES OF JAMES LEROY Filed: February 25, 2022
DOEBLER,
Decision; Dismissal; Uncovered
Petitioner, Vaccines; pneumococcal
v. polysaccharide (Pneumovax-23)
vaccine
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
William H. Barton, II, Barton Law Firm, PLLC, Pascagoula, MS, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On May 6, 2021, a petition for compensation was filed on behalf of James Leroy
Doebler2 under the National Vaccine Injury Compensation Program, 42 U.S.C. §
300aa—10 through 34 (the “Vaccine Act”).3 The petition alleges that Mr. Doebler
suffered injuries and ultimately died as a result of a “pneumonia 23 Valent vaccination”
on August 30, 2017. Petition at 1. While the Court of Federal Claims cover sheet
indicated this claim was a “454 Death – Pneumococcal Conjugate” case, the vaccine
received by Mr. Doebler was instead a pneumococcal polysaccharide vaccine. Exhibit 2
at 305 (vaccination history).
1
Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation f or the action in this
case, 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, I agree that the identified material f its within this
def inition, I will redact such material from public access.
2
The proper petitioner and administrator of James Doebler’s estate was later identified as Christopher
Doebler. Exhibit 6 (Letters of Administration). However, a motion to amend the caption was not filed.
3
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Because the petition alleged an injury based on a vaccine not included in the
Vaccine Injury Table, I issued an order to show cause why this case should not be
dismissed. Order, issued Oct. 26, 2021. Petitioner did not respond to the order to show
cause.
To be entitled to compensation under the Vaccine Act, a petitioner must
demonstrate that he or she received a vaccine set forth in the Vaccine Injury Table (the
“Table”). § 11(c)(1)(A). Compensation is awarded only to individuals “who have been
injured by vaccines routinely administered to children.” H.R. Rep. 99-908, 1986
U.S.C.C.A.N. 6344 at 3.
“There are two types of pneumococcal vaccines . . . pneumococcal conjugate
and polysaccharide vaccine[s].” Bundy v. Sec’y of Health & Human Servs., No. 12-
769V, 2014 WL 348852, at *1 (Fed. Cl. Spec. Mstr. Jan. 8, 2014). Only pneumococcal
conjugate vaccines, routinely administered to children, are covered by the Vaccine
Program. See Morrison v. Sec’y of Health & Human Servs., No. 04-1683V, 2005 WL
2008245, at *1 (Fed. Cl. Spec. Mstr. July 26, 2005) (describing how and when
pneumococcal conjugate vaccines were added to the Vaccine Table); 42 C.F.R. §
300aa—14(a)(XII) (pneumococcal conjugate vaccine listed on Vaccine Table).
Mr. Doebler received a pneumococcal polysaccharide vaccine. Exhibit 2 at 305.
As such, Petitioner is unable to show that Mr. Doebler “received a vaccine set forth in
the Vaccine Injury Table.” §11(c)(1)(A). Thus, Petitioner cannot receive compensation
on a claim based on a non-covered vaccine through the Vaccine Program, and the
petition must be dismissed. See, e.g., Cielencki v. Sec’y of Health & Human. Servs., No.
15-632V, 2015 WL 10767150, at *3 (Fed. Cl. Spec. Mstr. Dec. 22, 2015).
Petitioner has failed to demonstrate that Mr. Doebler was injured by a vaccine
covered under the Vaccine Program. This case is dismissed for failure to state a
claim upon which relief can be granted. The clerk shall enter judgment
accordingly.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
2