Thomas v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-733V
Filed: June 29, 2018
* * * * * * * * * * * * * * *
LORA THOMAS, *
*
Petitioner, *
v. *
* Dismissal; Insufficient Proof of Causation;
SECRETARY OF HEALTH * Influenza (“Flu”) Vaccination; SIRVA
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Edward M. Kraus, Esq., Law Offices of Chicago Kent, Chicago, IL, for petitioner.
Ann D. Martin, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION DISMISSING THE PETITION1
Roth, Special Master:
On June 22, 2016, Lora Thomas (“Ms. Thomas” or “petitioner”) filed a petition pursuant
to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (“Vaccine
Act” or “the Program”). Petitioner alleges that the seasonal influenza vaccine she received on
September 13, 2013, caused her to suffer from pain, limited range of motion, and weakness in
her right shoulder and upper arm. Petition, ECF No. 1. On June 6, 2018, the undersigned issued
a Ruling on Onset, finding that the petitioner’s symptoms of right shoulder pain began around
January 10, 2013. ECF No. 33. On June 28, 2018, petitioner filed a Motion for a decision
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be
posted on the Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub.
L. No. 107-347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This
means the Decision will be available to anyone with access to the internet. However, the parties may
object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under
Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be
available to the public. Id.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
1
dismissing her petition. ECF No. 34.
Under the Vaccine Act, a petitioner may prevail in one of two ways. First, a petitioner
may demonstrate that he suffered a “Table” injury—i.e., an injury listed on the Vaccine Injury
Table that occurred within the time period provided in the Table. § 11(c)(1)(C)(i). “In such a
case, causation is presumed.” Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317,
1320 (Fed. Cir. 2006); see § 13(a)(1)(B). Second, where the alleged injury is not listed in the
Vaccine Injury Table, a petitioner may demonstrate that he suffered an “off-Table” injury.
§ 11(c)(1)(C)(ii). An “off-Table” claim requires that the petitioner “prove by a preponderance of
the evidence that the vaccine at issue caused the injury.” Capizzano, 440 F.3d at 1320; see §
11(c)(1)(C)(ii)(II). A petitioner need not show that the vaccination was the sole cause, or even
the predominant cause, of the alleged injury; showing that the vaccination was a “substantial
factor” and a “but for” cause of the injury is sufficient for recovery. Pafford v. Sec’y of Health &
Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006); Shyface v. Sec’y of Health & Human
Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). In addition, the Vaccine Act requires petitioners to
show by preponderant evidence that the “residual effects or complications” of the alleged
vaccine-related injury lasted for more than six months. § 11(c)(1)(D)(i).
In this case, petitioner does not allege an injury listed on the Vaccine Injury Table; thus,
petitioner’s claim is classified as “off-Table,” which requires that she “prove by a preponderance
of the evidence that the vaccine at issue caused the injury.” Capizzano, 440 F.3d at 1320. “[T]o
show causation under the preponderance of the evidence standard,” a petitioner “must proffer
trustworthy testimony from experts who can find support for their theories in medical literature.”
LaLonde v. Sec’y of Health & Human Servs., 746 F.3d 1334, 1341 (Fed. Cir. 2014); see also
Althen, 418 F.3d at 1278 (explaining that a petitioner’s claim must be “supported by ‘reputable
medical or scientific explanation,’ i.e., ‘evidence in the form of scientific studies or expert
medical testimony’” (citation and alteration omitted)); Shyface, 165 F.3d at 1351 (“[E]vidence in
the form of scientific studies or expert medical testimony is necessary to demonstrate causation.”
(citation and emphasis omitted)).
Upon careful evaluation of all of the evidence submitted in this matter, the undersigned
concludes that petitioner has not shown by preponderant evidence that she is entitled to
compensation under the Vaccine Act. Petitioner has failed to offer evidence showing that the
vaccination she received on September 13, 2013, caused his alleged injuries. The petition is
therefore DISMISSED. The clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
2