Vandergriff v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-919v
(Unpublished)
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MARIA JILL VANDERGRIFF and *
JON-MICHAEL VANDERGRIFF, *
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administrator of the estate of R.V.,
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* Special Master Katherine E. Oler
Petitioners, * Filed: April 8, 2019
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*
v. *
* Petitioner’s Motion for a Decision;
SECRETARY OF HEALTH AND * Dismissal of Petition; Vaccine Act.
HUMAN SERVICES, *
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Respondent. *
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Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioner.
Ryan D. Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1
On June 27, 2018, Maria Jill and Jon-Michael Vandergriff, as administrators of the Estate
of R.V., (“Petitioners”) filed a petition for compensation under the National Vaccine Injury
Compensation Program, 2 alleging that their son, R.V., suffered injuries that led to his death as a
result of the DTaP-Hib-IPV (Pentacel) vaccination he received on March 28, 2017. Petition at 2,
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), 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 Decision in its present form will be available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
ECF No. 1. Petitioners filed their amended statement of completion on December 19, 2018. ECF
No. 16.
On February 14, 2019, Respondent filed a Rule 4(c) Report (“Respondent’s Report”). ECF
No. 17. Respondent stated that Petitioners had not satisfied their burden of proof, specifically
noting that Petitioners failed to identify a vaccine-related injury that resulted in R.V.’s death. Id.
at 7. Respondent concluded that “[P]etitioners have not offered sufficient reliable evidence to
establish a causal relationship” and requested that this case be dismissed. Id.
Following Respondent’s Report, Petitioners filed the instant motion to dismiss their claim
on April 5, 2019, indicating that “[a]n investigation of the facts and science supporting has
demonstrated to the Petitioners that they will be unable to prove that they are entitled to
compensation in the Vaccine Program.” See Petitioners’ Motion for Decision Dismissing their
Petition, ECF No. 20.
To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that she suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a
petitioner may not receive a Vaccine Program award based solely on her claims alone. Rather, the
petition must be supported by either medical records or by the opinion of a competent medical
expert. Section 13(a)(1). In this case, however, there is insufficient evidence in the record for
Petitioners to meet their burden of proof. Petitioners’ claim therefore cannot succeed and, in
accordance with their motion, must be dismissed. Section 11(c)(1)(A).
Thus, this case is DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
/s/ Katherine E. Oler
Katherine E. Oler
Special Master
2