Bombard v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-801V
Filed: June 12, 2014
***************************** UNPUBLISHED
TIMOTHY P. BOMBARD and JACQUELINE *
BOMBARD, natural parents and guardians of L.B., *
a minor, * Special Master
* Hamilton-Fieldman
*
Petitioners, * Petitioners’ Motion to Dismiss Petition;
v. * Insufficient Proof of Causation; Vaccine Act
* Entitlement; Denial Without Hearing.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*****************************
Thomas P. Gallagher, Thomas Gallagher, Esquire, LLC, Somers Point, NJ, for Petitioners.
Lisa A. Watts, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 7, 2013, Timothy Bombard and Jacqueline Bombard (“Petitioners”) filed a
petition on behalf of their child, L.B., for compensation under the National Vaccine Injury
Compensation Program (“the Program”), 42 U.S.C. §300aa-10, et seq. (2006), 2 alleging that
their child suffered from infantile spasms as a result of receiving the DTap, Hib, IPV, Rotavirus,
and Pneumococcal vaccinations on July 11, 2011. Petition (“Pet.”) at 1, ECF No. 1. The
information in the record does not show entitlement to an award under the Program.
1
The undersigned intends to post this unpublished decision on the United States Court of
Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107
347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As
provided by Vaccine Rule 18(b), each party has 14 days within which to file a motion for
redaction “of any information furnished by that party (1) that is trade secret or commercial or
financial information and is privileged or confidential, or (2) that are medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” In the
absence of such motion, the entire decision will be available to the public. Id.
2
The National Vaccine Injury Compensation 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. (2006).
1
On June 12, 2014, Petitioners moved for a decision dismissing their petition,
acknowledging that insufficient evidence exists to demonstrate entitlement to compensation.
To receive compensation under the Program, Petitioners must prove either 1) that L.B.
suffered a “Table Injury”-i.e., an injury falling within the Vaccine Injury Table- corresponding to
one of L.B.’s vaccinations, or 2) that L.B. suffered an injury that was actually caused by a
vaccine. See §§ 13 (a)(1)(A) and 11(c)(1). An examination of the record did not uncover any
evidence that L.B. suffered a “Table Injury.” Further, the record does not contain a medical
expert’s opinion or any other persuasive evidence indicating that L.B.’s alleged injury was
vaccine-caused.
Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient
medical records supporting Petitioners’ claim, a medical opinion must be offered in support.
Petitioners, however, have offered no such opinion.
Accordingly, it is clear from the record in this case that Petitioners have failed to
demonstrate either that L.B. suffered a “Table Injury” or that L.B.’s injuries were “actually
caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
/s/ Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
2