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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: February 8, 2022

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

RITA PINGEL

, * UNPUBLISHED

*

Petitioner, * No. 17

- 70 V

*

v. * Special Master Dorsey

*

SECRETARY OF HEALTH * Petitioner ’ s M o t ion for a Dec ision

AND HUMAN SERVI CES, * Dismi ss ing Her Petition ; Influenza ( “ Flu ” )

* Vaccine; Sensorineural Hearing Loss.

Respondent. *

*

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

William E. Cochran , Jr.

, Black McLaren, et al., PC

, Memphis, TN , for petitioner.

Chris tine Mary Becer , United States Department of Justice, Washington , DC, for respondent.

DECISION 1

On January 17 , 2017

, Rita Pingel (“ petitioner”) filed a petition for compensation under

the Na tional Vaccine Injury C ompensation Program (“ Vaccine Program” ) 2 alleging that as a

result of an infl u enza ( “ flu ” ) vacc in e a dmi n istered on January 22, 2014

, she suf f ered severe to

profound sensorineural hearing loss in her left ear

. Petition at Preamble (ECF No. 1)

. The

inform ation in the reco rd, however, does not show entitlement to an award under the Program.

On February 8, 2022 , petitioner moved for a decis ion dismissing her case , stating that

she “ n o longer intends to rely u pon expert reports of Dr. Eric Gershwin (filed as Exhibits 8, 49,

104, and 127) and Dr. Paul F. Shea (filed as Exhibit 47)

, ” a nd thus, “ [p]etitioner is unable to

1 Because th is Decision contains a reas o ned expl an at ion for the action in this case, the

unders igned is requir ed to post it on the Un ited States Court of Fed er al Cla ims’ website in

acc ordance with the E

- Government Act of 20 02. 44 U.S

. C. § 3501 no te (2012) ( Federal

Ma nagement and Promotion of E l ectronic G ov ernment Services). This means the Decision will

be availa ble to anyone with acce ss to the I nternet. In ac cordan ce wi th Vaccine Rul e 18(b),

petitioner has 14 da ys to iden tify and mo v e to redact medical or other info rmation, the disclosure

of w hich wou ld c onstitute an unwarranted invasion of privac y. If, upon re view, the undersigned

a grees that the iden tifie d materi al fi ts within this definition, the undersigned will redac t such

mate r ial from pub lic access.

2 The Program comprises Part 2 of the Nati on al Childhood Vaccine Injury Act of 1986 , 42

U .S.C. §§ 30 0 aa

- 10 et seq

. (hereinafter “Vaccine Act” or “the Act ”). Hereaf ter, indivi dual

section references will be to 42 U.S. C. § 300aa of the Act.2 present evidence to prov e entitlement to compensation in the vaccine program. ” Petitioner ’ s

Mot ion for Decision Dismissing Her Petition , filed Feb. 8, 2022

, at ¶ ¶ 1

- 2 (ECF No. 74 )

. Furthermore, “ to proceed further would be unreasonable and a waste the resources of th e C ourt

, [ r ] espondent, and the v accine p rogram

. ” Id. at ¶ 3. Petitioner s tates th at s he understands that a

d ecision by the Special Master will result in a judg ment ag ainst her , and that s he has been

advised that such judgment will e nd all of her rights under the V accine Act

. Id. at ¶ 4 . Peti tioner

states that s he intends to p rotect her right to file a ci vi l action and to elect to rejec t the V accine

P rogram judgment t o file a civil action

. Id. at ¶ 5. Respondent does not o ppose petitioner ’ s

motion. Id. at ¶ 6.

To receive compensation und er the Program, petitioner must prove ei ther (1 ) that he

suffered a “Ta ble Injury”

— i.e., an inj ury falling within the Vaccine In j u ry Table

— corresponding

to the vaccination, or ( 2) that he su ffered an injury that was actually caused by the vaccination.

See §§ 13(a)(1)(A) and 11(c)(1). The rec ords subm itted by petitioner show that he does not mee t

the statutory requirement under 4 2 U .S.C. § 300aa

- 11(c)(1)(D)(i) to establish ent itlement to

com pensation. The Federal Circuit has explained tha t the eligi bility requirements in Section

11(c) are no t mere ple ading requirements or ma tters of proof at tri al, but instead are “threshold

crit e ri [a] for seeking entry into the compensation p rogram.” Black v. Sec ’ y of Health & Human

Servs. , 93 F.3d 781, 785

- 87 (Fed . Cir. 1996).

Accordingly, i n light of petitioner ’ s motion and a review o f the record, the und ers i gned

fi nds that petitioner is no t entitled to compensation. Thus, this case is dismissed . The Clerk

shall enter judgment accordingly.

IT IS S O ORDERED.

s/Nora Beth Dorsey

Nora Be th Dorsey

Special Master