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# In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: January 16, 2020
* * * * * * * * * * * * * * * HEATHER DOUCETTE , * UNPUBLISHED * Petitioner, * No. 1 8

- 1 161 V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * AND HUMAN SERVICES, * Petitioner’s Motion for Dismissal; * In sufficient Proof of Causation; Respondent. * Influenza (F lu) V accine ; * Guill ain

- Barre Syndrome (GBS ) * * * * * * * * * * * * * * * Bridget C. McCullough , Muller Brazil, L.L.P ., Dresher, PA , for petitioner

. Darryl R. Wishard , U.S. Department of Justice, Washington, DC, for respondent.
DECISION DISMISSING CASE 1
On August 9 , 201 8 , Heather Doucette (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleges that as a result of the receipt of the I nfluenza (“flu”) vaccine on October 14, 2016, she suffered from Guillain

- Barre syndrome ( “ GBS ” ). Vaccine Rule 4(c) Report at Procedural History

. The information in the record, however, does not show entitlement to an award under the Program.
On December 4, 2019 , petitioner move d for a decision dismissing her petition, stating that “ [a]n investigation of the facts and science supporting has demonstrated to the petitioner that

1 This decision will be posted on the website of the United States Court of Federal Claims, in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be available to anyone with access to the internet. As provi ded by 42 U.S.C. § 300aa

- 12(d)(4)B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidenti al information. Specifically, u nder Vaccine Rule 18(b), each party has 14 days within which to request redaction “of a ny 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 unwarrante d invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public in its current form. Id.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et seq

. (herei nafter “Vaccine Act” or “the Act”).2

she will be una ble to prove that she is entitled to compensation” a nd that “to procee d any fur ther would be unre asonable and would waste the r esources of the C ourt, the re spondent, and the Vaccine Program.” Petitioner’s Motion for Decision Dismissing He r Petition at ¶¶ 1, 2. Petitioner states that she understands that a decision by the Special Master dismissing he r petition will re sult in a judgment against he r, and that she has been a dvised that such a judg ment will e nd all of her rights in the Vaccine Program. Id. at ¶ 3. Petitioner states that she intends to protect her right to file a civil action. Id. at ¶ 5. To receive compensation under the P rogram, petitioner must prov e e ithe r (1) that she suffered a “ Ta

ble Injury”— i.e., an injury falling w ithin the Va cc ine Injury Table

— corresponding to the va ccination, or (2) that she suff ered an injury that was actually c aused by the vaccination. See §§ 13(a)(1)(A ) and 11(c)(1). The r ecords submitted by pe titioner show that she does not meet the statut ory re quirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to compensation. The Federal Circuit ha s explained that the eligibility r equirements in Section 11(c) are not mere plea ding r equirements or matters of proo f at trial, but inst ead are “ threshold criteri[a] for se eking e ntry into the compensation program.” Black v . HHS , 93 F.3d 781, 785-87 (Fed. Cir. 1996). Furthermore, the Federal Circuit ha s characterized the requirement that residual effects persist for more than six mont hs after vaccination as “a c ondition precedent to filing a pe tition fo r compensation.” Cloer v. HHS , 654 F.3d 1322, 1335 (Fed. Cir. 2011). Petitioner bears the burd en of proving b y a p reponderance of the evidence that she mee ts the six

month residual effect requirement. Song v. HHS , 31 Fed. Cl. 61, 65- 66 (1994), aff’d, 41 F .3d 1520 (Fed. Cir. 1994).
In this case , there is an issue a s to whethe r petitioner ha s proven by pre ponderant evidence th at she suffered the residual effects of her alleged vaccine-related injury fo r more than six months. She wa s vaccinated on October 14, 2016. Petition at 1. On February 16, 2017, Dr. Na sser foun d that petitioner’s vaccine -related symptoms had fully re solved. Exh. 6 at 3. On September 7, 2017, petitioner reported to her gastroenterologist that her vaccine-related injury resolved by Ma rch 2017. Exh. 10 at 4. Petitioner’s medical records report that her a lleged vaccine-related injury s ymptoms resolved at four months or alternatively fi ve mont hs from the administration date of the vaccine. Moreover, t he re cord also suggests that petitioner’s evidence fa ils to mee t her burde n for a “ Ta ble Injury ” for G BS a fte r a flu vaccination. Her injury doe s not mee t the Table’s Qualifications and Aids t o Interpretation for GBS, as defined on the Vaccine Injury Ta ble. See 42 C.F.R. § 100.3(a) a nd (c)(15) . Petitioner ’s complaints to her tre ating ph ysic ians did not include limb weakness, diminished or absent reflexes, nor motor weakness

. See Exh. 3 at 41-44 and Exh. 6 a t 6. In support of clinical or diagnostic findings of GBS or sensory G BS, petitioner cites Dr. Nasser’ s assessment on December 8, 2016 that petitioner’s symptoms , “ could be a mi ld case of Pure se nsory Guillain Barre. ” Exh. 6 at 4. Contemporaneous diagnoses, however, suggested by h er treating physicians included sinusitis, pharyngitis, pericarditis, pneumonitis, and fibromyalgia. See Exh. 2 at 3-13; s ee Exh. 6 at 7-12. ; a nd s ee Exh. 7 at 5-11. The pe titioner did not ha ve C SF studi es or EMG/NCS testing to confirm the d iagnosis of GSB or sensory GBS.
Under the V accine Ac t, a pe titioner may not receive a P rogra m award based solely on the petitioner’s claims a lone. Rather, the petition must be supported by e ithe r medical records or b y3

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master the opinion of a c ompetent physician. § 13(a)(1). In this case, there a re ins ufficient medical records supporting p etitioner’s claim and petitioner has not file d a n expert report. Accordingly, it is clea r from the re cord in this case that petitioner has failed to demonstrate either that she suffered a “Ta ble Injury” or that the inj uries were “ actually c aused” by he r October 14, 2016, va ccination. Thus, thi s case is dismissed f or in sufficient proof. The Clerk sh all e nter jud gment accordingly.