# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 17, 2020

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

A. HART, * UNPUBLISHED

*

Petitioner, * No. 16

- 1186V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Motion for Deci sion Dismis sing

AND HUMAN SERVICES, * Claim ; Influenza (Flu); Pneumonia;

* Chroni c Shortne ss of Breath.

Respondent. *

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

Carol A. Thompso n

, The Federal Practice Grou p , Washington, DC

, for petitioner

. Voris E. Johnson , U.S. Department of Justice, Washington, DC

, for respondent

.

DECISION 1

On Sep tembe r 22, 20 16 , A. Hart (“petitioner”) filed a petition in the National Vaccine

Injury Compensation Program. 2 Petitioner alleged that as a result of receiving a n influenza (flu)

v accine on September 23, 20 13, she developed p neumonia and chronic shortness of breath with

and without ex ertion. Petition (ECF No. 1)

. The information in the record, does not establish

entitlement to compensation.

On December 1 6 , 2020, petitioner filed a motion for a decision dismissing the petition.

Petitioner’s Motion (“Pet. Mot.”) (ECF No. 94 ). An investigation of the facts and science

supporting her case has demonstrat ed to petitioner that s he will be unable to prove that s he is

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 anyone 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 National 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 citatio ns in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §

300aa.2

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

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

and the Vaccine Program. Id. at ¶ 2. Petitioner understands that a decision dismissing her

petition will result in a judgment against her

. Id. at ¶ 3. Sh e has been advised that such a

judgment will end all of her rights in the Vaccine Program. Id. Petitio ner understands that s he

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. Petitioner intends, un der 42 U.S.C. § 3 00aa

- 21 (a)( 2) , to accept the jud gment.

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 within a sp ecified period of

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

injury”) or (2) that s he suffered an injury that was caused

- in

- fact by a covered vaccine. §§

13(a)(1)(A); 11(c)(1). An examination of the reco rd does not contain persuasive evidence that

petitioner suffered a “Table Injury.” Thus, s he is limited to alleging causation

- in

- fact. The

record does not contain persuasive evidence indicating that petitioner’s injury was caused or in

any way related to the vaccine which s he 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 competen t medical expert. § 13(a)(1). In this case, the

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

su fficient 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).