# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 262V ( Unpublished )

* * * * * * * * * * * * * * * * * * * * * * * * * BONNIE WEIN, as Personal Representative of the Estate of Linda Carl, deceased, on behalf of the surviving children and heirs of
Linda Carl, Robert L. Fish, Jr., James H.

Waite and Michael C. Waite

,

Petitioner

,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.
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* Special Master Katherine E. Oler

Filed: April 30 , 2019

Petitioner’s Motion for a Decision ; Dismissal of Petition; Vaccine Act

.

Vanessa L. Brice

, Colling Gi l bert Wright & Carter, Orlando, FL

, for Petitioner. Daniel Principato

, U.S. Dep’t of Justice, Washington, DC

, for Respondent.

DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1

On February 20, 2018

, Bonnie Wein , as Personal Representative of the Estate of Linda Carl, deceased, on behalf of the surviving children and heirs of Linda Carl, Robert L. Fish, Jr.,

James H. Waite and Michael C. Waite (“Petitioner”) f iled a petition 2 for compensation under the National Vaccine Injury Compensation Program

, 3 alleging that Linda Carl suffered from injuries

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted

on the Court of Federal Claims’s website in accordance with the E

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

- 12(d)(4)(B), however, the parties may object to the decision’ s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or

commercial or financ ial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine

R ule 18(b). Otherwise, the Decision in its present form wi ll be available. Id.

2 This petition was initially assigned to Special Master Roth on February 21, 2018 and was re

- assigned to my docket on June 8, 2018

.

3 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99

- 660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (2012) (“Vaccine Act” or “the Act”) . Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).2

that led to her death as a result of the pneu mococcal conjugate vaccination (Prevnar

- 13) s he

received on January 11, 2017

. Petition at 1 , ECF No. 1

. Petitioner filed her final statement of completion on August 1, 2018 . ECF No. 13

.

O n March 1, 2019 , Respondent fil ed a Rule 4(c) Report (“Respondent’s Report”) . ECF No.

21 . Respondent stated that Petitioner had not satisfied her burden of proof, specifically noting that

Petitioner failed to offer a medical of scientific theory supporting causation

- in

- fact. Id

. at 4. Respondent concluded that “ [P] etitioner has not met her burden of proving entitlement to compensation

. ” Id

.

Following Respondent’s Report, I held a status conference via telephone with the parties on April 17, 2019 to discuss how Petitioner wanted to proceed

. Following the call, Petitioner filed

the instant motion to dismiss her claim on April 30, 2019

, indicating that “ [an] investigation of the facts and science supporting the case of Linda Carl has demonstrated that Petitioner will be unable to prove that the estate is entitled to compensation in the Vaccine Program.” See Petitioner ’ s Motion for a Deci sion Dismissing her Petition

, ECF No . 24

.

To receive compensation under the Vaccine Program, a petitio ner must prove either (1)

that s he suffered a “Table Injury”

– i.e., an injury falling within the Vaccine Injury Ta b le

– corresponding to one of her vaccinations, or (2) that s he suffered an injury that was actually caused by a vaccine. See Se ctions 13(a)(1)(A) and 11(c)(1)

. Moreover, u nder the Vaccine Ac t, a petitioner may not receive a Vaccine P rogram award based solely on her claims alone. Rathe r, the petition must be supported by either medical records or by the opinion of a competent medical

expert

. Section 13(a)(1). In this case, however, there is insufficient evidence in the record for

Petitioner to meet her burden of proof. Petiti oner’s claim therefore cannot succeed and

, in

accordance with her motion, must be dismissed. Section 11(c)(1)(A).

Thus, this case is DISMISSED for insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

/ s / Katherine E. Ole r

Katherine E. Oler
Special Master