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


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  •                  In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    Filed: August 3, 2021
    * * * * * * * *                     *    *    *   *    *
    JONATHAN CHARTER,                                      *                 UNPUBLISHED
    *
    Petitioner,                          *                 No. 21-1404V
    *
    v.                                                     *                 Special Master Gowen
    *
    SECRETARY OF HEALTH                                    *                 Dismissal; Shingles Vaccine
    AND HUMAN SERVICES,                                    *                 (Shingrix); Non-Covered Vaccine;
    *                 Ineligibility for Vaccine Program.
    Respondent.                          *
    *    *   *   *    * * * *           *    *    *   *    *
    Jonathan Charter, Manchester, CT, pro se petitioner.
    Madelyn Weeks, United States Department of Justice, Washington, DC, for respondent.
    DECISION1
    On May 27, 2021, Jonathan Charter (“petitioner”), acting pro se, filed a petition for
    compensation in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1).
    Petitioner alleges that he suffered injuries including adhesive capsulitis and a tear in his
    supraspinatus tendon following his receipt of a herpes zoster recombinant vaccine, with the
    brand name Shingrix (“the shingles vaccine”) on May 29, 2018. Id. at Preamble. The filed
    contemporaneous medical records and the report that petitioner later submitted to the VAERS
    1
    Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because 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
    decision.” 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-10 to 34 (2012)
    (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
    the Act.
    system support that petitioner received the alleged shingles vaccine and no other vaccines on or
    around the date in question. Pet. Ex. 2 at 39, 55; Pet. Ex. 1 at 2.3
    On June 17, 2021, I issued an order for petitioner to show cause why his claim should not
    be dismissed. Order to Show Cause (ECF No. 11).
    The order explained that to be be eligible to seek compensation from the Vaccine
    Program, a petitioner must show that he or she received a vaccine set forth in the Vaccine Injury
    Table (the “Table”). § 11(c)(1)(A). The Table only includes vaccines which the Centers for
    Disease Control and Prevention (“CDC”) recommends for routine administration to children. §
    14(e)(2)(A).
    New infection with varicella zoster virus causes chicken pox. The CDC recommends that
    children routinely receive varicella vaccines. See 62 Fed. Reg. 7685-01, 
    1997 WL 67537
    (published Feb. 20, 1997, effective March 24, 1997).4 Therefore, the Table allows for claims
    concerning varicella vaccines. See 42 C.F.R. § 100.3.
    In contrast, reactivation of latent varicella zoster virus causes herpes zoster, which is also
    known as shingles. The CDC recommends shingles vaccines for adults, but not for children.5
    Therefore, the Table does not allow for claims concerning shingles vaccines.
    Previous petitions concerning shingles vaccines have been dismissed. See, e.g., Wilson v.
    Sec’y of Health & Human Servs., No. 21-1090V, 
    2021 WL 2379553
     (Fed. Cl. Spec. Mstr. April
    22, 2021); Danberry v. Sec’y of Health & Human Servs., No. 20-778V, 
    2020 WL 6375330
     (Fed.
    Cl. Spec. Mstr. Sept. 28, 2020); Scanlon v. Sec’y of Health & Human Servs., No. 13-219V, 
    2013 WL 5755061
     (Fed. Cl. Spec. Mstr. Sept. 27, 2013), aff’d, 
    114 Fed. Cl. 135
     (2013); Nilsen v.
    Sec’y of Health & Human Servs., No. 10-110V, 
    2010 WL 1753471
     (Fed. Cl. Spec. Mstr. Apr. 6,
    2010); Doe/47 v. Sec’y of Health & Human Servs., No. [redacted]V, 
    2009 WL 3416368
     (Fed. Cl.
    Spec. Mstr. Sept. 10, 2009).
    Similarly, here, petitioner alleges injuries occurring after a shingles vaccine. I am
    prevented from considering his claim concerning this non-covered vaccine.
    Therefore, I ordered petitioner to show cause as to why his petition should not be
    dismissed, by way of filing an amended petition and supporting evidence that he received an
    vaccine listed on the Table, within 30 days, by Monday, July 19, 2021.
    3
    It is also noted that petitioner has not filled out and returned the E-Notification Form, which would allow him to
    send and receive all court filings by e-mail. See Amended General Order No. 2 (ECF No. 5) (served on petitioner
    by U.S. mail on May 28, 2021).
    4
    See also CDC – Vaccines and Preventable Diseases, Chickenpox (Varicella), available at
    https://www.cdc.gov/vaccines/vpd/varicella/public/index.html (last accessed June 17, 2021).
    5
    See CDC – Vaccines and Preventable Diseases, Shingrix, available at
    https://www.cdc.gov/vaccines/vpd/shingles/hcp/shingrix/recommendations html (last accessed June 17, 2021)
    (recommending the Shingrix vaccine only for adults 50 years and older).
    2
    Alternatively by that same deadline, petitioner could dismiss his claim which would
    result in the entry of judgment and allow him to pursue a separate claim outside of the Vaccine
    Program, for example, against the vaccine administrator. Alternatively, he could withdraw his
    claim and preserve his right to seek to reopen his claim, in the (somewhat unlikely, in my
    estimation) event that shingles vaccines are added to the Table at some time in the future. 6
    The order to show cause noted that petitioner’s failure to respond would result in
    dismissal of his claim. The order was served on petitioner via U.S. mail at the address he
    provided.
    The deadline to respond to the order to show cause was July 19, 2021, which has now
    passed. Petitioner has not filed any response and he has not contacted my chambers.
    Accordingly, petitioner has failed to demonstrate that he received a vaccine listed on the
    Vaccine Injury Table and is therefore ineligible to pursue a claim in the Vaccine Program. This
    case is dismissed for failure to state a claim upon which relief can be granted. The Clerk of
    the Court shall enter judgment accordingly.7
    IT IS SO ORDERED.
    s/Thomas L. Gowen
    Thomas L. Gowen
    Special Master
    6
    For more information, see https://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (link to “Exiting
    the Vaccine Program”).
    7
    If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment
    pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
    3
    

Document Info

Docket Number: 21-1404

Judges: Thomas L. Gowen

Filed Date: 9/16/2021

Precedential Status: Non-Precedential

Modified Date: 9/16/2021