Dvorak v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 4, 2020
* * * * * * * * * * * * * * *
MARY LOU DVORAK, *
* No. 19-1544V
*
Petitioner, * Special Master Sanders
*
v. *
*
SECRETARY OF HEALTH * Dismissal; Influenza (“Flu”) Vaccine;
AND HUMAN SERVICES, * Transverse Myelitis (“TM”); Death
*
Respondent. *
* * * * * * * * * * * * * * *
Harrison Long, Rawls Law Group, Richmond, VA, for Petitioner.
Althea Davis, United States Department of Justice, Washington, D.C., for Respondent.
DISMISSAL 1
On October 3, 2019, Mary Lou Dvorak (“Petitioner”) filed a petition for compensation on
behalf of her deceased husband, Henry Dvorak, under the National Vaccine Injury Compensation
Program (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged
that Mr. Dvorak developed transverse myelitis (“TM”) which resulted in permanent extremity
weakness, partial paralysis, and death as a result of the influenza (“flu”) vaccine he received on
November 13, 2017. Pet. at 1, ECF No. 1. At this time, the information in the record, however,
does not show entitlement to an award under the Program.
On July 29, 2020, Petitioner filed an unopposed motion for a decision dismissing her
petition. ECF No. 19. In her motion, Petitioner indicated that “for reasons personal to [her]…she
no longer would like to proceed with the case.” Id. at 1. She continued, “to proceed any further
would be unreasonable and would waste the resources of the Court, the respondent, and the
Vaccine Program.” Id. 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 Mr.
Dvorak suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to the vaccination, or (2) that he suffered an injury that was actually caused by a
vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the limited record to date did not uncover
evidence that Mr. Dvorak suffered a “Table Injury.” Further, the record does not contain persuasive
evidence that Mr. Dvorak’s alleged injury was caused by the flu vaccine.
Under the Act, petitioners may not be given a Program award based solely on their claims
alone. Rather, the petition must be supported by medical records or the opinion of a competent
physician. § 13(a)(1). In this case, the submitted medical records are insufficient to prove
Petitioner’s claim, and Petitioner has not filed a supportive opinion from an expert witness.
Therefore, this case must be dismissed for insufficient proof. 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