# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: March 25, 2021

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

CHARLES W. MORRILL, * Unpublished

*

Petitioner, * No. 18

- 910V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Dis missal; Insufficient Proof

. AND HUMAN SERVICES, *

*

Respondent. *

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

Jimmy A. Zghei b, Zgheib Sayad, P.C., White Plains, N.Y ., for petitioner.

Dhairya D. Jani, U.S. Dept. of Justice, Washington, D.C., for res pondent

.

DI SMIS SAL DECISION 1

On June 26, 2018, Ch arles W. Morrill ( “ petitioner ” ) filed a petition pur suant to the

National Vaccine Injury Compensation Program. 2 Petitioner allege s that as a result of receiving

an influenza ( “ flu ” ) vaccin ation on October 5, 2017, he developed a right Shoulder Injury

Related to Vaccine Administrati on ( “ SIRVA ” ). The information in the re cord does not establish

entitlement to compensation.

O n March 24, 2021 , petitioner field a motion for a decision dismissing the petition

. Petitioner ’ s M otion ( “ Pet. Mot. ” ) (ECF No. 62). Petitioner s tates that an investigation of the

facts and scien ce supp orting the claim has demonstrated t hat he will be unable to prov e that he is

entitle d to compensation. Pet. Mot . at ¶ 1. In these circumstances

, to proceed any further would

be unreason able and w ould waste the re sources of the Co urt, the respondent and the Vaccine

1 P ursuant to the E

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

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. Th is means the

opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s

website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the

opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the

court’s website without any changes. Id.

2 The Program comprises Part 2 of the National Childhood Va ccine 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.2

Program. Id. at ¶ 2. Petitioner understand s that dismissing his pe tition will result in a judgment

against him and has been advised that such a judgment will terminate all of his rights in the

Vaccine program. Id. at ¶ 3. Petitioner also understand that his attorney may apply for

attorneys ’ fees and costs once his case is di smissed and judgment is entered against him. Id. at ¶

4. Petitioner also und erstands that respon dent res erves the right, pursuant to § 300aa

- 15 ( e) , to

question the good faith and reasonable basis of his claim and to oppose, if appropriate, his

application for fees and costs. Id. Petitioner inte nds to protect hi s rights to file a civil action in

the future. Id. at ¶ 5.

To received compensation in the Vaccine Program, petitioners have the burden of

provi ng either: (1 ) that the vaccine e 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 vac cinee suffered an injury that was caused

- in

- fact by a covered

v accine. §§ 13 (a)(1)(A); 11(c)(1). In this case, pe titioner was alleging a Table I njury and

therefore must demonstrate that he received a vaccine set forth in the V accine Injury Table.

Petitioner has been unable to demonstrate that he received a covered vaccine in hi s right shoulder

and petitioner can not receive compensation on a claim based on a non

- co vered vaccine through

the Vaccine Program. Therefore, the petition must be dismissed. See e.g. Cielencki v. Sec ’ y of

Health & Human Servs., No. 15

- 63 2V, 2015 WL 10767150, at *3 (Fed. Cl. Spec. Mstr. Dec. 22,

2015) (dismissing petition that involves P neumovax).

Petitioner has f

ailed to demonstrate that he was injured by a vaccine covered under the

Vaccine Program. Th us, pe titioner ’ s mo tion is GRANTED. This matter is DISMIS SED for

insufficient proof. The Clerk of the Court shall enter judgment accordingly. 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 renounc ing the right to seek review. Vaccine Rule

11(a).