# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: May 24 , 2017

* * * * * * * * * * * * * * * * * * * UNPUBLISHED

SUSAN GRIGOLA

, *

* No. 15

- 1032V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Petitioner’s Motion for Dismissal Decision;

AND HUMAN SERVICES, * Influenza (“Flu”) Vaccine;

* Rheumatoid Arthritis.

Respondent. *

* * * * * * * * * * * * * * * * * * *

Edward M. Kraus , Law Offices of Chicago Kent, Chicago, IL, for petitioner.

Adriana Teitel , United States Department of Justice, Washington, DC for respondent.

DECISION 1

On September 16, 2015, Susan Grigola (“petitioner”) filed a petition pursuant to the

National Vaccine Injury Compensation Program. 2 Petitioner alleged that as a result of an

influenza (“flu”) vaccine received on October 4, 2012 , she subsequently suffered injuries

including rheumatoid arthritis . Petition at 1.

On May 23 , 2017, petitioner ’s counsel filed a motion for a decision dismissing her

petition . Petitioner’s Motion . The motion provides: “Petitioner believed that the influenza

vaccin e she received on October 4, 2012, was the cause of her rheumatoid arthritis.

Unfortunately, under the circumstances of her case, including the complicating fact of

petitioner’s deat h... from acute myelocytic leukemia, petitioner’s family does not believe t hat it

can be proven that the vaccine was more likely than not the cause of her illness. Therefore,

following a thorough investigation, petitioner’s family believes they will be unable to prove that

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to

post this decision on the United States Co urt 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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to

identify a nd 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, I agree that the identified material fits within the requirements of that

provision, I will delete such material from public access.

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

300aa

- 10 et seq. (hereinafter “Vaccine Ac t” or “the Act”). Hereafter, individual section references will be

to 42 U.S.C. § 300aa of the Act.2

she is entitled to compensation in the Vaccine Program.” Id. at ¶ 1. Petitioner’s family has been

advised that a decision by the Special Master dismissing the petition will result in a judgment

against her. Id. at ¶ 3. Petitioner’s family has been advised that such a judgment will end all of

her/ their rights in the Vaccine Program. Id.

To receive compensation under the Program, petitioner must prove either (1) that she

suffered a “Table Injury”

— i.e., an injury fa lling within the Vaccine Injury Table

— corresponding

to the vaccination, or (2) that she suffered an injury that was actually caused by the vaccination.

See §§ 13(a)(1)(A) and 11(c)(1). Under the Vaccine Act, petitioner may not be given a Program

award ba sed solely on her own claims . Rather, the petition must be supported by either medical

records or by the opinion of a competent physician. § 13(a)(1).

An examination of the records does not uncover any evidence that peti tioner suffered a

“Table Injury ,” or that her injuries were “actually caused” by the flu vaccine received on October

4, 2012. Petitioner did submit two reports from an expert supporting causation between the flu

vaccine and her rheumatoid arthritis. Petitioner’s Exhibit 37, filed Marc h 29, 2016; Petitioner’s

Exhibit 83, filed September 30, 2016. The case was complicated by the fact of petitioner’s death

from acute myelocytic leukemia on August 24, 2016. To date, petitioner’s expert has not opined

that the flu vaccine caused petitione r’s death. Additionally, respondent, through his own expert,

has vigorously disputed petitioner ’ s expert ’ s theory.

During a status conference on March 28, 2017 , I observed that this case involved a

complicated immune theory and there was litigative risk on both sides. The possible damages

a re limited and due to the volume of cases in the Vaccine Program , the earliest possible dates for

an entitlement hearing a r e in October 2018. I encouraged the parties to pursue the possibility of

settlement. On May 2, 2017, respondent indicated that he would not consider settlement. On

May 23, 2017, petitioner’ s counsel filed a motion for a dismissal decision, indicating that he and

petitioner’s family had thoroughly investigated the matter and determined that proceeding further

would be unreasonable. Based on my review of the case, I agree that it is appropria te to dismiss

the case.

Accordingly, it is clear that the record does not contain any evidence that petitioner

suffered a “Table Injury.” Furthermore, it cannot be proven that petitioner’s injuries were

“actually caused” by the October 4, 2012 flu vac cine. Thus, this case is dismissed for

insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

/Thomas L. Gowen

Thomas L. Gowen

Special Master