Brannigan v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-675V
(Filed: April 7, 2017)
* * * * * * * * * * * * * *
HOLLY BRANNIGAN, *
Parent of KB, a minor *
* Dismissal; Tetanus-diphtheria-
Petitioner, * acellular pertussis (“TDaP”)
* Vaccine; Human papillomavirus
v. * (“HPV”) Vaccine; Influenza
* (“Flu”) Vaccine; Dysautonomia;
SECRETARY OF HEALTH * Postural Orthostatic Tachycardic
AND HUMAN SERVICES, * Syndrome (“POTS”).
*
Respondent. *
* * * * * * * * * * * * * *
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Darry Wishard, U.S. Dept. of Justice, Washington, DC for respondent.
DECISION1
Roth, Special Master:
On July 28, 2014, petitioner filed a petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program [“the Program”]2 on behalf of her minor child K.B.
Petitioner alleged that K.B. received tetanus-diphtheria-acellular pertussis (“TDaP”) and human
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision 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
have 14 days to identify and move to delete medical or other information, that satisfies the
criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, I will delete such material from public
access.
2
The Program comprises 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-10 et seq. (hereinafter
“Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.
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papillomavirus (“HPV”) vaccinations on or about July 28, 2011, influenza and HPV vaccinations
on September 30, 2011, an HPV vaccination on January 30, 2012, and an influenza vaccination on
September 12, 2012, and thereafter suffered from severe acne, headaches, near syncopal episodes,
dysautonomia, and Postural Orthostatic Tachycardia Syndrome (“POTS”). On December 16,
2016, petitioner filed an Amended Petition, further alleging that K.B. received an intranasal
influenza vaccine on November 8, 2012, a meningococcal vaccine on February 13, 2013, and an
influenza vaccine on December 30, 2013, each of which “was a significant contributing factor to
her autonomic nervous system impairment.” Amended Pet. at 1, ECF No. 69. The information in
the record, however, does not show entitlement to an award under the Program. On April 6, 2017,
petitioner filed a Motion for Decision Dismissing Petition, requesting that her case be dismissed.
ECF No. 73.
To receive compensation under the Program, petitioner must prove either 1) that she
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that K.B.
suffered a “Table Injury.” Further, the record does not contain persuasive evidence indicating
that K.B.’s alleged injury was vaccine-caused or in any way vaccine-related.
Under the Act, petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient
medical records supporting petitioner’s claim, a medical opinion must be offered in support.
Petitioner, however, has offered no such opinion that supports a finding of entitlement.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that K.B. suffered a “Table Injury” or that K.B.’s injuries were “actually
caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
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