Harding v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 17, 2018
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MICHELE HARDING, * No. 17-1164V
ON BEHALF OF W.J.H., *
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Petitioner, * Special Master Sanders
*
v. *
* Dismissal; Insufficient Proof;
SECRETARY OF HEALTH * Rotavirus Vaccine; Kawasaki
AND HUMAN SERVICES, * Disease (“KD”)
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Respondent. *
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Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for Petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On August 29, 2017, Michele Harding (“Petitioner”) filed a petition on behalf of W.J.H.
pursuant to the National Vaccine Injury Compensation Program (“Vaccine Program”). 2 42
U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that W.J.H. suffered from Kawasaki
Disease (“KD”) as a result of the rotavirus vaccine he received on September 12, 2014. Pet.,
ECF No. 1. The information in the record, however, does not show entitlement to an award
under the Program.
On August 16, 2018, Petitioner submitted a Motion to Dismiss her petition. ECF No. 18.
In her Motion, Petitioner conceded that “[a]n investigation of the facts and science supporting
her case has demonstrated to [P]etitioner that she will be unable to prove that [W.J.H.] is entitled
1
This decision shall be posted 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). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted 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).
to compensation in the Vaccine Program.” Id. at 1.
To receive compensation under the Program, Petitioner must prove either (1) that W.J.H.
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that W.J.H. suffered an injury that was actually caused by a vaccine.
See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that
W.J.H. suffered a “Table Injury.” Further, the record does not contain persuasive evidence that
W.J.H.’s alleged injury was caused by the rotavirus vaccine.
Under the Act, petitioners may not be given a Program award based solely on their claims
alone. Rather, the petition must be supported by medical records or the opinion of a competent
physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s
claim, and Petitioner has not filed a supportive opinion from an expert witness. Therefore, this
case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2