Sullivan v. Secretary of Health and Human Services ( 2014 )


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  • In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    N0. 14-226V
    (Not to be published)
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    BRIDGET SULLIVAN, for *
    JAMES SULLIVAN, * Filed: August l2, 2014
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    Petitioner, *
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    v. * Dismissal Decision;
    * RCFC l2(b)(6);
    SECRETARY OF HEALTH AND * Vaccine not covered;
    HUMAN SERVICES, * Denial Without Hearing
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    Respondent. *
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    Bridget Sullivan, Pro Se Petitioner.
    Tara J. Kilfoyle, U.S. Department of Justice, Washington, DC, for Respondent.
    DECISION DISMISSING CASEl
    On March 24, 20l4, Petitioner Bridget Sullivan filed an action on behalf of James
    Sullivan seeking compensation under the National Vaccine Injury Compensation Program (the
    "Vaccine Program")z. Petitioner alleges that James suffered chronic muscle aches, pains,
    tremors, immune dysfunction, and cardiac problems as a result of receiving the Pandemrix
    influenza ("flu") vaccine.
    1 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the United
    States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. N0. 107-347, §
    205, ll6 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C §
    300aa-l2(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential
    information. To do so, Vaccine Rule l8(b) permit each party 14 days within which to request redaction "of any
    information furnished by that party: (l) that is a trade secret or commercial or financial in substance and is
    privileged or confidential; or (2) that includes medical files or similar tiles, the disclosure of which would constitute
    a clearly unwarranted invasion of privacy." Vaccine Rule l8(b). Otherwise, the decision will be available to the
    public. Ia'.
    2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
    Injury Act of 1986, Pub. L. N0. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C.A. § 300aa-l0-§ 300aa-34
    (West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A.
    § 300aa.
    Petitioner did not submit a filing fee with her petition, but instead moved for leave to
    proceed in forma pauperz's. On April 8, 2014, l issued an Order denying Petitioner’s motion
    because it did not fully substantiate Petitioner’s entitlement to a waiver of her filing fee in this
    case.3 Thereafter on July 9, 2014, Respondent’s counsel filed a motion to dismiss arguing that
    the vaccine at issue is not covered under the Act, and that Petitioner has not alleged that James is
    within the category of individuals who are eligible to receive compensation under the Act.
    A Vaccine Program petition may be dismissed for failure to state a claim pursuant to the
    U.S. Court of Federal Claims Rule l2(b)(6). That rule requires a petitioner to provide "a short
    and plain statement of the claim, which shows that the petitioner is entitled to relief. " Totes-
    lsotner Corp. v. United States, 594 F3d 1346 (Fed. Cir. 2010), (quoting Bell Atl. Co)"p. v.
    Twombly, 550 U.S. 544,555 (2007)); Scanlon v. Sec'y ofHealth & Human Servs., N0. l3-2l9V,
    
    2013 WL 5755061
    (Fed. Cl. Sept. 27, 2013) a]j"ci, 
    114 Fed. Cl. 135
    (Fed. Cl. 2013).
    ln her Motion to Dismiss, Respondent correctly states that "to be entitled to
    compensation under the Vaccine Act, petitioner must demonstrate that James ‘received a vaccine
    set forth in the Vaccine Injury Table.’ " Resp’t’s Motion to Dismiss at 3 (ECF N0. 6) (citing §
    ll(c)(l)(a)). ln this case, Ms. Sullivan alleges that James’ injuries were caused by the Pandemrix
    vaccine, but that vaccine is not covered under the Act. 42 C.F.R. §100.3. The Pandemrix vaccine
    is a monovalent flu vaccine administrated in several European countries during the HlNl
    pandemic. The Act, by contrast, only covers trivalent flu vaccines and other seasonal flu
    vaccines. See 42 C.F.R. § 100.3 (a)(XlV); Aguayo v. Secj) ofHeallh & Human Servs., N0. 12-
    563V, 
    2013 WL 441013
    , at *l (Fed. Cl. Sp. Mstr. Jan 15, 2013). The Secretary has not published
    a notice of coverage with respect to this monovalent HlNl vaccine, and Congress has not
    enacted an excise tax related to monovalent HlNl flu vaccine. Schmz'a't v. Health & Human
    iS`e/'vs., N0. ll-40lV, 2011 6148590 (Fed. Cl. Sp. Mstr. Nov. 21, 2011).4
    Because of the above, there is insufficient evidence upon which an entitlement award
    could be based. To receive compensation under the Program, Petitioner must prove either l) that
    James suffered a "Table lnjury" - i.e., an injury falling within the Vaccine Injury Table -
    corresponding to one of her vaccinations, or 2) that he suffered an injury that was actually caused
    by a vaccine. See §§13(a)(1)(A) and ll(c)(l). An examination of the record, however, did not
    uncover any evidence that James suffered a "Table Injury." Further, Petitioner cannot establish
    James was injured by a covered vaccine.
    3 To date, Petitioner has never paid the filing fee nor filed a proper inf'orma pauperis motion.
    " The Vaccine Act expressly authorizes the United States Department of I-lealth and Human Services to revise the
    Vaccine Injury Table. See 42 U.S.C. §300aa-l4(c)(l). The Act provides that the Secretary of United States
    Department of Health and Human Services shall "amend the Vaccine injury Table," only after the Centers for
    Disease Control and Prevention "recommends a vaccine to the Secretary for routine administration to children. Ia'.
    The Secretary of Health and Human Services has two years from the date of the Centers for Disease Control and
    Prevention’s recommendation within which to amend the Table. §300aa-l4(e)(2). ln addition, Congress must
    approve an excise tax providing funds for the payment of compensation related to any vaccine that the Secretary of
    Hea|th and Human Services adds to the Table. See 26 U.S.C. §413l(a).
    2
    I am very sympathetic to James’ plight. But it is evident from the record that Ms. Sullivan
    has failed to demonstrate that her son received a vaccine set forth in the Vaccine Injury Table.
    Accordingly, this case is dismissed for failure to state a claim upon which relief may
    be granted. The Clerk shall enter judgment accordingly.
    IT IS SO ORDERED.
    . t
    Brian H. Corcoran
    Special Master
    

Document Info

Docket Number: 1:14-vv-00226

Judges: Brian H. Corcoran

Filed Date: 9/5/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021