Hughes v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 3, 2019
* * * * * * * * * * * * *
LORI HUGHES, * UNPUBLISHED
*
Petitioner, * No. 18-1554V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Dismissal Decision;
AND HUMAN SERVICES, * Influenza (“Flu”); Guillain-Barré
* Syndrome (“GBS”).
Respondent. *
* * * * * * * * * * * * *
Peter M. Young, Habush, Habush & Rottier, S.C., Wausau, WI, for petitioner.
Jay M. All, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On October 9, 2018, Lori Hughes (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that she developed
Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine received on October
21, 2015. Id. at Preamble. The information in the record, however, does not show entitlement to
an award in the Program.
On July 2, 2019, petitioner filed a motion for a decision dismissing the petition.
Petitioner’s Motion (ECF No. 20). The motion provides that an investigation of the facts and
science has demonstrated to the petitioner that she will be unable to prove that she is entitled to
compensation in the Vaccine Program. Id. at ¶ 1. In these circumstances, to proceed any further
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.
would be unreasonable and would waste the resources of the Court, the Respondent, and the
Vaccine Program. Id. at ¶ 2. Petitioner understands that a decision by the special master
dismissing her petition will result in a judgment against her and that such a judgment will end all
of his rights in the Vaccine Program. Id. at ¶ 3. Petitioner may apply for fees and costs once her
case is dismissed and judgment is entered against her. As detailed further therein, petitioner
understands that respondent expressly reserves the right to raise several objections, if
appropriate, to petitioner’s application for fees and costs. Id. at ¶ 4. Petitioner does intend to
protect her rights to file a civil action in the future. Therefore, pursuant to Section 21(a)(2),
petitioner intends to elect to reject the Vaccine Program judgment and to protect any rights to
elect to file a civil action in the future. Id. at ¶ 6.
To receive compensation in the Vaccine Program, petitioner must prove either: (1) that he
suffered a “Table Injury,” i.e., an injury beginning within a specified period of time following
receipt of a corresponding vaccine listed on the Vaccine Injury Table, or (2) that he suffered an
injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). An examination
of the record does not support a finding that petitioner suffered a “Table injury.” Further the
record does not contain persuasive evidence that petitioner suffered an injury that was caused-in-
fact by the flu vaccination she received on October 21, 2015.
Under the Vaccine Act, the Vaccine Program may not award compensation solely based
on a petitioner’s own claims. Rather, a petitioner must support the claim with either medical
records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records do
not establish causation for either a “Table Injury” or an “off-Table” injury which was caused-in-
fact by the vaccine. Neither has petitioner submitted an expert report to support causation-in
fact. Therefore, I agree that petitioner has not met her burden of proof. Therefore, her claim
cannot succeed and it must be dismissed. § 11(c)(1)(A).
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2