Silver v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 4, 2020
* * * * * * * * * * * * * * *
VALERIE SILVER, Parent of R.S., *
a minor, * No. 16-1019V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Dismissal; Human Papillomavirus Vaccine
AND HUMAN SERVICES, * (“HPV” or Gardasil); Adverse Reaction
*
Respondent. *
* * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Christine Becer, United States Department of Justice, Washington, D.C., for Respondent.
DISMISSAL 1
On August 18, 2016, Valerie Silver (“Petitioner”) filed a petition for compensation on
behalf of her minor daughter, R.S., under the National Vaccine Injury Compensation Program
(“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that
R.S. suffered an adverse reaction to the human papillomavirus (“HPV” or Gardasil) vaccination
she received on August 21, 2013. Pet. at 1, ECF No. 1.
On August 3, 2020, Petitioner filed an unopposed motion for a decision dismissing her
petition. ECF No. 85. In her motion, Petitioner indicated “[she] has made the choice that she would
like to opt out of the Vaccine Program in advance of the Court ruling on entitlement…[and] wishes
to pursue a third-party action in district court against Merck directly.” Id. at 2-3. She continued,
“[t]his choice should not be viewed in any way that Petitioner does not believe in the merits of her
claim or that R.S.’s injuries are not a result of Gardasil…[she] simply needs a judgment so that
she may reject said judgment and submit her election to opt out.” Id. at 3. Respondent had no
objection to Petitioner’s motion. Id.
1
This Decision shall be posted on the United States Court of Federal Claims’ website, in accordance with
the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the Decision will be available to anyone with access to
the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete
medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the I
agree that the identified material fits within the requirements of that provision, such material will be
deleted from public access.
To receive compensation under the Program, Petitioner must prove either (1) that she
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that she suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that Petitioner
suffered a “Table Injury.” Further, a closer review of the record is not warranted in light of
Petitioner’s motion for a decision dismissing her petition. Therefore, this case must be dismissed.
The Clerk shall enter judgment accordingly. 2
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
2