Mercer v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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SHANNON MERCER, *
* No. 17-1544V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: January 7, 2020
*
SECRETARY OF HEALTH * Entitlement, dismissal.
AND HUMAN SERVICES, *
*
Respondent. *
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Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Shannon Mercer alleged that an influenza vaccination she received on
October 20, 2014, caused her to suffer from Bell’s palsy and sensory neuropathy in
her left arm and hand. Pet., filed Oct. 17, 2017, at 1. On December 19, 2019, Ms.
Mercer moved for a decision dismissing her petition.
I. Procedural History
Ms. Mercer filed a petition on October 17, 2017. After Ms. Mercer filed all
of her medical records, including certain records outstanding from her initial
filings identified by the Secretary in his June 4, 2018 status report, the Secretary
filed his Rule 4(c) report on September 20, 2018, contesting entitlement.
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The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website
(https://www.uscfc.uscourts.gov/aggregator/sources/7). Once posted, anyone can access this
decision via the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a
motion proposing redaction of medical information or other information described in 42 U.S.C. §
300aa-12(d)(4). Any redactions ordered by the special master will be reflected in the document
posted on the website.
A status conference was then held on November 27, 2018, in which the
parties discussed the possibility of settlement and the undersigned set deadlines for
petitioner and respondent to file status reports regarding progress made in informal
settlement negotiations. After receiving a demand from petitioner, respondent
filed a status report on May 28, 2019, indicating his desire to proceed with
litigation.
On June 12, 2019, another status conference was held, after which the
undersigned issued expert instructions that were ultimately finalized on August 15,
2019. The undersigned also ordered petitioner to file her expert report by August
1, 2019.
After filing two motions for enlargement of time to file her expert report on
October 15, 2019, and December 16, 2019, both of which were granted, Ms.
Mercer moved for a decision dismissing her petition on December 19, 2019. In the
motion, Ms. Mercer stated that she “has been unable to secure further evidence
required by the Court to prove entitlement to compensation,” but “does intend to
protect her rights to file a civil action in the future.” Pet’r’s Mot., filed Dec. 19,
2019, ¶¶ 1, 3. The Secretary did not file a response to this motion. This matter is
now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that petitioner suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
petitioner’s vaccinations, or 2) that petitioner suffered an injury that was actually
caused or significantly aggravated by a vaccine. See §§ 300aa—13(a)(1)(A) and
300aa—11(c)(1). Under the Act, a petitioner may not be given a Program award
based solely on petitioner’s claims alone. Rather, the petition must be supported
by either medical records or by the opinion of a competent physician. § 300aa—
13(a)(1). If the medical records do not sufficiently support a petitioner’s claim, a
medical opinion must be offered in support.
In her December 19, 2019 motion, Ms. Mercer admitted that she would be
unable to provide evidence sufficient to establish her claim and prove entitlement
to compensation. Pet’r’s Mot., filed Dec. 19, 2019, ¶ 1. Ms. Mercer was unable to
retain an expert to provide an opinion. Though Ms. Mercer filed this motion
pursuant to 42 U.S.C. § 300aa—21(a) (regarding voluntary dismissal), the
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undersigned will construe this as a motion filed pursuant to 42 U.S.C. § 300aa—
21(b) (regarding involuntary dismissal), given petitioner’s clear intent that a
judgment issue in the case, protecting her right to file a civil action in the future.
See Pet’r’s Mot., filed Dec. 19, 2019, ¶¶ 2-3.
In light of Ms. Mercer’s concession that this case is not compensable and a
review of the entire record, the undersigned finds that Ms. Mercer has not
established a Table Injury of the influenza vaccine causing Bell’s palsy and
sensory neuropathy.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.
Any questions may be directed to my law clerk, Haley Hawkins, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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