Fitzgibbons v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-1409V
UNPUBLISHED
DIANNE FITZGIBBONS,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 17, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Elaine W. Sharp, Whitfield, Sharp & Sharp, Marblehead, MA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 30, 2022, Dianne Fitzgibbons filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10
through 34,2 (the “Vaccine Act”). Petitioner alleged that she developed small fiber
neuropathy from an influenza vaccine she received on October 1, 2019. ECF No. 1.
On November 14, 2023, Petitioner filed a motion for a decision dismissing the
petition. ECF No. 9. For the reasons set forth below, Petitioner’s motion is GRANTED,
and this case is DISMISSED.
Relevant Procedural History
Petitioner did not file any supporting documentation with the petition. The PAR
Initial Order required Petitioner to file statutorily required medical records and other
supporting documentation. ECF No. 5. To date, Petitioner has not filed any supporting
documentation.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 fits within this definition, I will redact such material from public access.
2 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).
On November 14, 2023, Petitioner filed a motion for a decision dismissing the
petition stating that “one or more of Petitioner’s treating physicians has advised her she
cannot prove that the influenza vaccination at issue in this case caused her
injury/injuries.”3 ECF No. 9 at 1. Although Petitioner’s counsel disputes the treating
physicians’ evaluations, Petitioner does not wish to continue pursuing her vaccine claim.
Id.
Grounds for Dismissal
To receive compensation under the National Vaccine Injury Compensation
Program, a petitioner must prove either 1) that the vaccinee suffered an “on-Table”
injury – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
the listed vaccines within the applicable time frames, or 2) that the vaccinee suffered an
injury not listed the Table or outside the applicable time frames, an “off-Table” injury,
that was actually caused by a listed vaccine. See §§ 300aa—13(a)(1)(A) and 11(c)(1).
Petitioner alleged an off-Table injury, i.e., that her small fiber neuropathy was actually
caused by the influenza vaccination.
Under the Vaccine Act, a petitioner may not receive compensation based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa—13(a)(1). For an
off-Table injury, a petitioner must satisfy all three of the elements established by the
Federal Circuit in Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1278 (2005):
“(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 proximate temporal relationship between vaccination and
injury.”
Petitioner has not submitted any evidence to establish the Althen prongs, such
as an expert report proposing a medical theory. Moreover, Petitioner has not submitted
any medical records to establish the vaccination, her injury, or other basic requirements
of the Vaccine Act.
Thus, Petitioner has failed to establish entitlement to compensation in the Vaccine
Program. This case is dismissed for insufficient proof. The clerk shall enter
judgment accordingly.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 As noted above, Petitioner has not filed the medical records containing these opinions from her treating
physicians or any other medical records.
4 If Petitioner wishes to bring a civil action, she 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