# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 2021 V (Not to be published)

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

SARAH NEAL

, *

* Special Master Corcoran

*

* Filed: June 5, 2019 Petitioner, *

v. *

* Motion for Decision Dismissing

SECRETARY OF HEALTH * Petition. AND HUMAN SERVICES, *

* Respondent. *

*

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

Phyllis Widman

, Widman Law Firm, LLC

, Ocean City, NJ , for Petitioner.

Traci R. Patton , U.S. Dep’t of Justice, Washington, D.C., for Respondent.

DECISION DISMISSING CASE 1

On December 22 , 2017, Sar ah Neal filed a Petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioner alleged that her
receipt of the tetanus

- diphtheria

- acellular pertussis ( “ TD aP ” ) vaccine on December 22, 2015

, caused the in utero death of her son , C.N.

, which in turn caused Petitioner to experience emotional
and psychological suffering

. Pet. at 1 (ECF No. 1 ). This case was filed in conjunction with a
petition on behalf of C.N. , which was dismissed on July 24, 2 018, on the grounds that the Va ccine

1 Although this D ecision has been formally designated “not to be published,” it will nevertheless be posted on the

Court of Federal Claims’s website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012)). This

means that the Decision 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 D ecision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial o r 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 Ru le 18(b). Otherwise, the whole D ecision will be available to the public

in its current form

. Id

.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa

- 10 through 34 (2012) [hereinafter “Vac cine Act” or “the Act”]. Individual section references hereafter will be to § 300aa of the Act.2

Act ’ s provisions relating to vaccines impacting infants in utero do not cover deceased unborn

child ren. Neal v. Sec ’

y of Health & Human Servs ., No. 17

- 2020V, 2018 WL 4482535 (Fed. Cl.
Spec. Mstr. July 24, 2018)

.

T he above

- captioned matter went forward, and Petitioner filed medical records and an
affidavit in early 2018. Upon review of these filings, Respondent filed a Rule 4(c) Report, a ssert ing
that Petitioner was not entitled to compensation. See generally Resp’t’s Rule 4(c) Report, filed
Aug. 1 4 , 2018 (ECF No. 1 5 ). Respondent argued that Petitioner had failed to put forth a reliable
scientific theory explaining how her C.N. ’ s death was caused by the TDaP vaccine, and that her

related claim of emotion al and psychologi cal dis tress thus could not succe ed. Id. at 6

– 7.

Petitioner filed an expert report from Alan Levin, M.D., on January 29, 2019 (ECF No. 22

- 1). During a status conference on February 13, 2019 , I expressed my view that Dr. Levin ’ s report did not provide substantial support for Petit ioner ’ s claim, and I directed Petitioner to file a

s upplemental expert report to strengthen her position

. See Docket Order, dated Feb. 13, 2 019

. Unable to obtain such additio nal expert support , Petitioner instead filed a Motion seeking dismissal

of her claim on May 31 , 2019. See generally Pet’r’s Mot. for Decision Dismissing Pet. (ECF

No. 2 7 ).

To receive compensation under the Vaccine Act, a petitioner must prove either (1) that she
suffered a Table injury, or (2) that she suffered an injury that was actually caused by a vaccine.

See Sections 11(c)(1), 13(a)(1)(A). However, Petitioner did not suffer a Table injury , and the

record does not contain persuasive evidence in dicating that her child ’ s in utero death could have
been caused by the TDaP v accine P e titioner received on December 22, 2015.

The death of an unborn child is a heartbreaking event, and I am sympathetic to the fact that

Petitioner experienced profound grief and emotional distress as a result of this tragedy . However,

Petitioner has not offered preponderant evidence d emonstrating that her child ’ s passing was

causa lly related to the TDaP vaccine . In keeping with Section 11(c)(1)(A), her claim therefore

cannot succeed and must be dismissed.

Accordingly, I hereby DISMISS Petitioner’s case. In the absence of a motion for review
filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in

accordance with the terms of this decision. 3

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran
Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices renouncing their right to seek review.