Tavolacci v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 9, 2021
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ANGELA TAVOLACCI, parent of L.T., *
a Minor, * UNPUBLISHED
*
Petitioner, * No. 17-1327V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Petitioner’s Motion for a Decision
AND HUMAN SERVICES, * Dismissing Her Petition; Diphtheria-
* Tetanus-Acellular-Pertussis (“DTaP”)
Respondent. * Vaccine; Hypotonic Failure to Thrive;
* Developmental Delay.
* * * * * * * * * * * * * * * * * * *
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington,
DC, for petitioner.
Colleen Clemons Hartley, United States Department of Justice, Washington, DC, for respondent.
DECISION 1
On September 25, 2017, Angela Tavolacci (“petitioner”), parent of L.T., a minor, filed a
petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine
Program”) 2 alleging that as a result of diphtheria-tetanus-acellular-pertussis (“DTaP”) vaccine
administered on October 9, 2015, L.T. suffered hypotonic failure to thrive and developmental
delay. Petition at Preamble. The information in the record, however, does not show entitlement
to an award under the Program.
1
Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 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.
1
On September 7, 2021, petitioner moved for a decision dismissing her case, stating that
“[a]n investigation of the facts and science supporting has demonstrated to the [p]etitioner that
she will be unable to prove that she is entitled to compensation in the Vaccine Program,” and
thus, “to proceed further would be unreasonable and would waste the resources of the Court, the
respondent, and the Vaccine Program.” Petitioner’s Motion for Decision Dismissing Her
Petition, filed Sept. 7, 2021, at ¶¶ 1-2 (ECF No. 72). Petitioner states that she understands that a
decision by the Special Master will result in a judgment against her, and that she has been
advised that such judgment will end all of her rights under the Vaccine Act. Id. at ¶ 3. Petitioner
states that she intends to protect her right to file a civil action and to elect to reject the Vaccine
Program judgment to file a civil action. Id. at ¶ 5.
To receive compensation under the Program, petitioner must prove either (1) that he
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to the vaccination, or (2) that he suffered an injury that was actually caused by the vaccination.
See §§ 13(a)(1)(A) and 11(c)(1). The records submitted by petitioner show that he does not meet
the statutory requirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to
compensation. The Federal Circuit has explained that the eligibility requirements in Section
11(c) are not mere pleading requirements or matters of proof at trial, but instead are “threshold
criteri[a] for seeking entry into the compensation program.” Black v. Sec’y of Health & Human
Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).
Accordingly, in light of petitioner’s motion and a review of the record, the undersigned
finds that petitioner is not entitled to compensation. Thus, this case is dismissed. The Clerk
shall enter judgment accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
2