# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 5, 2022

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

CLAUDIA MARQUEZ, *

*

Petitioner, * No. 19

- 1811V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Dismissal; Insufficient Pro of;

AND HUMAN SERVICES, * Severity.

*

Respondent. *

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

Renee J. Gentry, Vaccine Injury Clinic, George Washington Un iv. La w School, Washington,

D.C., for petitioner.

Parisa Tabassian, U.S. Dept. of Justice, Washington, D.C., for respondent.

DECISION DISMISSING PETITION 1

On November 26, 2019, Claudia Marquez ( “ petitioner ” ) filed a petition for compensation

under the National Vaccine Injury Compensation Program (“Vaccine Program or Program). 2

Petitioner alleged that she suffered from a right Shoulder Injury Related to Vaccine

Adm inistration ( “ SIRVA ” ) af ter receiving a n influenza ( “ flu ” ) vaccination on November 14,

2017. Petition (ECF No. 1). The information in the record, howe ver, does not show entit lement

to an award under the Progr am.

On August 5, 2022, petitioner filed a motion for a decision dismis sing the petition.

Petitioner ’ s Motion ( “ Pet. Mot. ” ) (ECF No. 38). Petitioner states that “ an investigation of the

facts and science supporting the claim has demonstrated to the petitioner that sh e will be unabl e

1 In accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012), because this opinion contains a

reasoned explanation for the action in this case, this opinion will be posted on the website of the United States

Court of Federal Claims . This means the opinion 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 published Decision’s inclusion of

certain kinds of confidential information. Specifically, under Vac cine Rule 18(b), each party has 14 days within

which to request redaction “of any 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 unwarranted invasion of privacy.” Vaccine Rule 18(b). If neither

party files a motion for redaction within 14 days, the entire opinion will be posted on the website and available

to the public in its current form. Id

.

2 The National Vaccine Injury Compensation Program is set forth in 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. §§ 3 00aa

- 1 to

- 34 (2012)

(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §

300aa.2

to provide that she is entitled to compensation in the Vaccine Progr am

. ” Pet. Mot. at ¶ 1. In

these circumstances, to proceed any further would be unreasonable and would was te the

resources of the Court, the respondent and the Vac cine Program. Id. at ¶ 2. Petitioner

understands that a decision by the Special Master dismissing her petition will result in a

jud gment against her. She has been a dvised that such a jud gment will end all of her righ ts in the

Vaccine Progr am. Id. at ¶ 3. Petitioner also u nders tands that her attorney may apply for

at torneys ’ fees and costs once his case i s dismissed and ju dgment is entered agains t her. Id. at ¶

4. Petit ioner intend s to pro tect her rights to file a civil action in the future, and therefore,

pursuant to 42 U.S.C. § 300aa

- 21(a)(2) , she intends to elect to reject the Vaccine Program

judgment against her and elect to file a civil action. Id. at ¶ 5.

To receive compensation in the Vaccine Program, petitioner s have the burden of proving

either: (1) that the vaccinee suffered a “Table Injury,” i.e., an injury beginning within a specified

period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table or

(2) that the vaccinee suffe red an injury that was caused

- in

- fact by a covered vaccine.

§§13(a)(1)(A); 11(c)(1). In this case, petitioner was alleging a Table Injury

. A prerequisite for

eligibility to proce ed in the Vaccine Program, is that a petitioner establish she suffered an injury

t hat is sufficiently severe. The petition, affidavit, and supporting evidence must demonstrate that

the in dividual “ (i) suffered the residual effects or complications of such illness, disability, injury,

or c ondition for more than six mont hs after the administration of the vaccine

. ” § 11 (c)(1)(D).

Unde r the Vaccine Act: “ T h e special master or court may not make [a finding of entit l ement]

based on the c laims of a petitioner alone. ” R ather, the petition must be “ [s]ubstantiated by

medical records or by medical opinion. ” 1 3(a)(1)(A). Petitioner has been unable to demonstrate

that she has suffered an injury to her right shoulder after the administration of the November 14,

2017

, fl u vaccine for mo re than six months. Therefore, it is appropriate to dismiss petitioner ’ s

claim for insufficient proof of the severity requirement, as well as the all eged Table Injury.

Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient

proof. The Clerk of the Court shall enter judgment ac cordingly. 3

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule

11(a).