# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14

- 1 229 V

Filed: May 8 , 2015

Unpublished

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

THOMAS THOMPSON

, *

*

Petitioner, *

* Petitioner’s Motion to Dismiss;

v. * Insufficient Proof of Causation;

* Vaccine Not on Vaccine Injury Table;

SECRETARY OF HEALTH * Special Processing Unit (“SPU”)

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Maximillian Muller, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner.

Debra Begley

, Esq., U

. S

. Department of Justice, Washington, DC, for re spondent.

DECISION 1

Vowell

, Chief Special Master:

On December 22 , 2014

, Thomas Thompson filed a petition for compensation

under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et

seq

. , 2 [ the “Vaccine Act” or “Program”]. Petitioner alleged that he suffered a shoulder

injury or brachial neuritis after receiving the influenza vaccine on February 4, 2014.

Petition at 1. The case was assigned to the Special Processing Unit of the Office of

Special Masters.

Petitioner filed his medical records on January 9, 2015 ( see Petitioner’s Exhibits

[“Pet. Exs.”] 1

- 3), and an initial status conference call was held on January 26, 2015

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I inte nd

to post it on the United States Court of Federal Claims' website, in accordance with the E

- Government

Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501

note (2006)) . In accordance with Vaccine Rule 18 (b), petitioner has 14 day s to identify and move to

redact medical or other information, the disclosure of which would constitute an unwarranted invasion of

privacy. If, upon review, I agree that the identified material fits withi n this definition, I will redact such

material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

3 00aa (2006).2

( see Order, issued Jan. 27, 2015, at 1). I ordered respondent to file a status report

providing her position regarding peti tioner’s claim. Id.

On March 27, 2015, respondent file d her status report indicating “ the records

reveal [ed] that petitioner did not receive an influenza vaccination in his left arm as

alleged, but rather received an adult pneumonia vaccine in his left arm. ” Status Report

at 1 (citing Pet. Ex. 1, p. 118). Respondent further indicat ed that the records showed

petitioner received the influenza vaccine in his right arm but suffered injury to his left,

not right, shou lder

. Id. Because the adult pneumococcal vaccine is not a co vered

vaccine, 3 respondent argued “the court has no jurisdiction of any claims of injury

associated with this vaccine.” Status Report at 1. Respondent added that she “ha[d]

discussed these issues with petitioner’s counsel and petitioner is currently considering

how he would like to proceed. ” Id.

I ordered petitioner to file a status report indicating whether he wished to proceed

with his claim or exit the Vaccine Program. Order, issued Mar. 27, 2015, at 1. I

instructed him to file additional evidence which supports a finding of jurisdiction if

continuing with his claim or the appropriate notice, motion, or stipulation if exiting the

program. Id.

On May 6, 201 5, petitioner filed a motion for a decision dismissing his petition.

He agreed that the records indicate he received a vaccine not included on the Vaccine

Injury Table ( an adult pneumococcal vaccine) in his left arm. Petitioner’s Motion at 1.

He admitted he “ cannot demonstrate by pre ponderant evidence that his alleged injury

was caused by a vaccine contained on the Vaccine Injury Table . . . [and] to proceed

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

respondent, and the Vaccine Program .” Id. at 2.

Petitioner has failed to demonstrate that his injury was caused by a vaccine listed

on the V accine Injury Table. T hus, this case is dismissed for insufficient proof.

The clerk of the court is directed to enter judgment in accordance with this

decision. 4

s/Denise K. Vowe ll

Denise K. Vowell

Chief Special Master

3 See, e.g.

, Bundy v. Sec’y, HHS , No. 12

- 769V, 2014 WL 348852, at *1 (Fed. Cl. Spec. Mstr. Jan. 8,

2014). Only pneumococcal conjugate vaccines, routinely administered to children, are covered by the

Vaccine Program. Id

.

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice

renouncing the right to seek review.