Kunysz v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1633V
UNPUBLISHED
COURTNEY KUNYSZ,
Chief Special Master Corcoran
Petitioner,
v.
Filed: January 18, 2022
SECRETARY OF HEALTH AND
HUMAN SERVICES, Motion for decision; Dismissal;
Human Papillomavirus (HPV)
Respondent. Vaccine; Seizure disorder;
Neurological dysfunction
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION 1
On November 20, 2020, Courtney Kunysz filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through
34, 2 (the “Vaccine Act”). Ms. Kunysz alleged that she suffered a seizure disorder and
neurological dysfunction that were caused-in-fact from the Gardasil (HPV) vaccine she
received on December 12, 2017. ECF No. 1 (Petition), at ¶ 9.
On December 6, 2021, Ms. Kunysz filed a motion for a decision dismissing her
petition in order to allow her to “pursue a third party action in district court against Merck
directly.” ECF No. 17, at ¶ 3. Petitioner indicated that she “understands that an adverse
decision by the [undersigned] dismissing the Petition will result in a judgment against
her.” Id. at ¶ 5. Furthermore, Petitioner has “been advised that such a judgment will end
all of her rights in the Vaccine Program.” Id. For the reasons set forth below, Ms.
Kunysz’s motion is GRANTED, and this case is DISMISSED.
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
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
To receive compensation under the National Vaccine Injury Compensation
Program, a petitioner must prove either 1) that the vaccinee suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the
vaccinations, or 2) that the vaccinee suffered an injury that was actually caused by a
vaccine. See §§ 300aa—13(a)(1)(A) and 11(c)(1). Examination of the record does not
disclose any evidence that Ms. Kunysz suffered a “Table Injury”.
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 establish by a preponderance of evidence that their
injury was caused-in-fact by the vaccine they received. § 11(c)(1)(C)(ii)(I), §13(a)(1). In
this case, the record does not contain medical records or a medical opinion sufficient to
demonstrate that Petitioner is entitled to compensation. For these reasons, and in
accordance with § 12(d)(3)(A), Petitioner’s claim for compensation is denied and
this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
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