Allmart v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION
DEC 20 2019
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe Wntteb $)tates (!Court of jfeberal (!Claims
OFFICE OF SPECIAL MASTERS
No. 19-628V
Filed: October 1, 2019
************* *
S.A. andH.A., Parents ofA.A., on * Dismissal; Hepatitis B ("Hep B")
behalf ofA.A., * RotaTeq, Diphtheria-Tetanus-Acellular-
Petitioners, * Pertussis ("DTaP"), Haemophilus
* Influenzae Type B ("Hib") Vaccines;
V. * Inactivated Polio Vaccine; Immune
* Dysfunction; Reactive Airway Disease;
SECRETARY OF HEALTH * Asthma
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Pro se, Evanston, IL, for petitioners.
Althea Davis, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION 1
Roth, Special Master:
On April 22, 2019, petitioners filed a petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program ("the Program"),2 on behalf of their minor child, A.A.
Petitioners alleged that the hepatitis B ("Hep B"), Prevnar 13, RotaTeq, diphtheria-tetanus-
acellular pertussis ("DTaP"), inactivated polio vaccine ("IPV"), and haemophilus influenzae type
B ("Hib") vaccines A.A. received on April 8, 2016 caused A.A. to develop immune dysfunction,
reactive airway disease, and asthma. The information in the record, however, does not show
entitlement to an award under the Program. On September 9, 2019, petitioners filed a request for
withdrawal and censorship. ECF No. 19. In this request, petitioners requested that their case be
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Although this Decision has been formally designated "unpublished," it will nevertheless be posted on the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 l 8(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.2The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755, codified as amended, 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.
dismissed and that A.A. 's name be censored from the public record. Id. This request will be
interpreted as a Motion for a Dismissal Decision. After a dismissal decision is issued, petitioners
will have 14 days to file a Motion for Redaction explaining why redaction of A.A.' s initials is
warranted, if necessary. Petitioners are advised that the only information that will be publicly
available is this dismissal decision.
To receive compensation under the Program, petitioners must prove either 1) that A.A.
suffered a "Table Injury" - i.e., an injury falling within the Vaccine Injury Table- corresponding
to his vaccination, or 2) that A.A. suffered an injury that was actually caused by a vaccine. See §§
13(a)(l)(A) and 1l(c)(l). The petition in this matter may have not been timely filed pursuant to 42
U.S.C. § 300aa-16(a)(l), which requires that petitions be filed within three years of the date of
vaccination or the first manifestation of injury. The record indicates A.A. received the allegedly
causal vaccination on April 8, 2016 but the petition was not formally filed until April 22, 2019 -
approximately 14 days out of time. Given the vague nature of A.A.' s alleged injuries, it is unclear
as to when onset of these injuries began. Absent clear evidence of onset, petitioners' statute of
limitations deadline is based on the date of vaccination. Further, an examination of the record did
not uncover any evidence that petitioner suffered a "Table Injury." The record also does not contain
persuasive evidence indicating that petitioner's alleged injury was vaccine-caused or in any way
vaccine-related.
Under the Act, petitioners may not be given a Program award based solely on the
petitioners' claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician.§ 13(a)(l). In this case, because there are insufficient medical
records supporting petitioner's claim, a medical opinion must be offered in support. Petitioners,
however, have offered no such opinion that supports a finding of entitlement.
Accordingly, it is unclear from the record, but it appears that the petition was not timely
filed pursuant to 42 U.S.C. § 300aa-16(a)(l). Additionally, petitioners have failed to demonstrate
either that A.A. suffered a "Table Injury" or that A.A.' s injuries were "actually caused" by a
vaccination. Thus, this case is dismissed for insufficient proof and failure to file a claim within
the statutorily prescribed timeframe. The Clerk shall enter judgment accordingly.
The Clerk's Office is directed to send this decision to petitioners at the following address
via certified and regular mail.
IT IS SO ORDERED.
nA TE, 1 o/il /;!otg ~/~ e_OQu >- •
Mindy Michaels Roth
Special Master
2