In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-2021V

(Not to be published)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 CASE1

On December 22, 2017, Sarah 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 (“TDaP”) 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, 2018, on the grounds that the Vaccine 

 

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the 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. § 300aa12(d)(4)(B), however, the parties may object to the Decision’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 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). Otherwise, the whole Decision 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 “Vaccine 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 

children. Neal v. Sec’y of Health & Human Servs., No. 17-2020V, 2018 WL 4482535 (Fed. Cl. 

Spec. Mstr. July 24, 2018). 

The 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, asserting 

that Petitioner was not entitled to compensation. See generally Resp’t’s Rule 4(c) Report, filed 

Aug. 14, 2018 (ECF No. 15). 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 emotional and psychological distress thus could not succeed. 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 Petitioner’s claim, and I directed Petitioner to file a

supplemental expert report to strengthen her position. See Docket Order, dated Feb. 13, 2019. 

Unable to obtain such additional 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. 27). 

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 indicating that her child’s in utero death could have 

been caused by the TDaP vaccine Petitioner 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 demonstrating that her child’s passing was 

causally 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.