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

KATHLEEN SPAIN, * UNPUBLISHED

*

Petitioner, * No. 18-737V

v. *

* Special Master Dorsey

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, * Petitioner’s Motion for Decision Denying

* Compensation; Diphtheria-Tetanus-acellular

Respondent. * Pertussis (“DTaP”) Vaccine; Optic Neuritis

* (“ON”).

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

Diana L. Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for petitioner.

Glenn MacLeod, United States Department of Justice, Washington, DC, for respondent.

DECISION1

On May 24, 2018, Kathleen Spain (“petitioner”) filed a petition for compensation under 

the National Vaccine Injury Compensation Program (“the Program”)2alleging that she received 

a Diphtheria-Tetanus-acellular Pertussis (“DTaP”) vaccination on May 15, 2017, and thereafter 

developed optic neuritis (“ON”). Petition at 1-2. The information in the record, however, does 

not show entitlement to an award under the Program.

On February 7, 2020, petitioner moved for a decision denying compensation, stating that

“[p]etitioner has filed all evidence Petitioner believes is relevant to this matter and does not 

intend to file further evidence in support of Petitioner’s case,” and thus petitioner “waives the 

1 Because this Decision contains a reasoned explanation for the action in this case, the 

undersigned is required to post it 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), 

petitioner has 14 days to identify and move to redact medical or other information, the disclosure 

of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned 

agrees that the identified material fits within this definition, the undersigned will redact 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 Act” or “the Act”). Hereafter, individual 

section references will be to 42 U.S.C. § 300aa of the Act.

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: February 7, 2020 
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IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master 

right to any hearing or further proceedings in this matter” and “moves for a decision denying 

compensation.” Petitioner’s Motion for Decision Denying Compensation at ¶¶ 1-3. Petitioner 

states that she understands that a decision by the Special Master will result in a judgment against 

her, and that she has been advised that such a judgment will end all of her rights under the 

Vaccine Act. Id. at ¶ 4. Petitioner states that she intends to protect her right to file a civil action. 

Id. at ¶ 6. 

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

suffered a “Table Injury”—i.e., an injury falling 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). The records submitted by petitioner show that she does not 

meet the statutory requirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to 

compensation. The Federal Circuit has explained that the eligibility requirements in Section 

11(c) are not mere pleading requirements or matters of proof at trial, but instead are “threshold 

criteri[a] for seeking entry into the compensation program.” Black v. Sec’y of Health & Human

Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996). 

Accordingly, in light of petitioner’s motion and a review of the record, the undersigned 

finds that petitioner is not entitled to compensation. Thus, this case is dismissed. The Clerk 

shall enter judgment accordingly.