# In t he United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: April 23, 2020

* * * * * * * * * * * * * UNPUBLISHED

M A RY FINCH, *

* No. 1 8

- 1680 V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Motion for Dismissal Decision;

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

* Administ ration; S houlder Injury

Respondent. * Related to Vaccine Administr ation

* * * * * * * * * * * * * ( “ S IRVA ” ).

Jeffrey S. Pop

, Jeffrey S. Pop & Associates, Beverly Hills, CA

, for petitioner

. Lisa A. Watts , U.S. Department of Justice, Washington, DC

, for respondent

.

DECISION 1

On October 31, 2018

, Mary Finch (“petitioner”) filed a petition in th e National Vaccine

Injury Compensation Program. 2 Petitioner alleged that as a result of receiving an in flu enz a

vaccine on November 14, 2017 , she developed a shoulder injury related to vaccin e

administration ( “ SIR VA ” ). Petition (ECF No. 1). The information in the record, does not

establish entitlement to compensation.

On April 23 , 2020, petitioner filed a motion for a decision dismissing the petition

. Petitioner’ s Motion (“Pet. Mot.”) (ECF No. 30 ). An investigation of the facts and s cience

support ing her case has demonstrated to petitioner that she will be unable to pro ve that she is

entitled to compensation in the Vaccine Program. Id. at ¶ 1. In these circumstances, to proceed

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

. This means the

opinion will be available to anyo ne 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 Nationa l 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. §§ 300aa

- 1 to

- 34 (2012)

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

300aa.2

any further would be unreasonable and would waste the resources of the Court, the Respondent,

and the Vaccine Program. Id. at ¶ 2

. Petitioner understands tha t a decision dismissing her

petition will result in a judgment against her. Id. at ¶ 3. She has been advised that such a

judgment will end all of her rights in the Vaccine Program. Id. Petitioner understands t hat she

may apply for fees and costs once her case is dismissed and judgment is entered against her. Id.

at ¶ 4. Respondent expressly reserves the right, pursuant to 42 U.S.C. § 300aa

- 15(e), to question

the good faith and reasonable basis of the claim and to oppose, if appropriate, the application for

fees and costs. Id.

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

either: (1) that s he suffered a “Table Injury,” i.e., an injury beginning withi n a specified period of

time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a “Table

injury”) or (2) that she suffered an injury that was caused

- in

- fact by a covered vaccine. §§

13(a)(1)(A); 11(c)(1). An examina tion of the record does not contain persuasive evidence that

peti tioner suffered a “Table Injury.” Namely, the Table lists SIRVA only in a ssociation with

vaccinations that are adm inistere d (in jected ) into a muscle . 42 C.F.R. § 100.3 ( c)(10). In this

case , petitioner received a n intrade rmal vaccination. Pet. Ex. 3 at 42. Thus, she is limited to

alleging causation

- in

- fact. T he record does not contain persuasive evidence indicating that

petitioner ’ s injury was caused or in any way related to the vaccine which she received.

Moreover, under the Vaccine Act, the Vaccine Program may not award compensation

based on the petitioner’s claims alone. Rather, the petitioner must support the claim with either

medical records or the opinion of a competent medical expert . § 1 3(a)(1). In this case, the

medical records are insufficient to establish entitlement and petitione r has not submitted an

expert report or medical literature

.

Thus, petitioner ’ s motion is GRANTED. This matter is DISMISSED 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 renouncing the right to seek review. Vaccine Rule

11(a).