Green v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1295V
Filed: March 18, 2020
* * * * * * * * * * * * * *
KELLY GREEN, parent of D.W.G., *
a minor, *
* Dismissal; Rotavirus Vaccine;
Petitioner, * Intussusception; Severity
* Requirement
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Cort Arlint, Esq., Arlint Law, LLC, Henderson, NV, for petitioner.
Traci Patton, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION1
Roth, Special Master:
On August 27, 2019, petitioner filed a petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program (“the Program”)2 on behalf of his minor child, D.W.G.,
alleging that the rotavirus vaccine caused D.W.G. to develop intussusception. See Petition ¶10,
ECF No. 1. The information in the record, however, does not show entitlement to an award under
the Program. On March 18, 2020, petitioner filed a Motion for Dismissal Decision requesting that
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Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the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
The 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.
his case be dismissed. ECF No. 14.
To receive compensation under the Program, the injured person must meet what has been
deemed the “severity requirement.” See 42 U.S.C. §300aa-11(c)(1)(B)-(D). A petitioner can show
that the injured person suffered the residual effects of the alleged injury for more than six months
after the administration of the vaccine; the injured person died from the administration of the
vaccine; or the injured person suffered from an alleged injury which resulted in inpatient
hospitalization and surgical intervention. Id.
D.W.G.’s medical records indicate that he did not suffer residual effects of intussusception
for more than six months after his rotavirus vaccination, and the Court has repeatedly held that
intussusception treated with a barium enema does not qualify as surgical intervention. See, e.g.,
Spooner v. Sec’y of Health & Human Servs., No. 13-159V, 2014 WL 504728 (Fed. Cl. Spec. Mstr.
Jan. 16, 2014); Carda on behalf of G.J.C. v. Sec’y of Health & Human Servs., No. 14-191V, 2017
WL 6887368, at *3 (Fed. Cl. Spec. Mstr. Nov. 16, 2017). Petitioner’s claim does not meet the
severity requirement of residual effects of an alleged injury or illness for more than six months
following administration of a vaccine or inpatient hospitalization and surgical intervention and is
therefore ineligible to receive compensation in the Vaccine Program.
Thus, this case is dismissed. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
2