Thomas v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 4, 2016
[Not to be published]
*************************
CHARLES THOMAS, administrator of * No. 14-715V
the Estate of CHERYLL THOMAS, *
deceased, *
Petitioner, * Special Master Gowen
v. *
* Dismissal; Influenza
SECRETARY OF HEALTH * (Flu) Vaccine; Chronic
AND HUMAN SERVICES, * Demyelinating Polyneuropathy
* (CIDP)
Respondent. *
*
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Lawrence R. Cohan and David J. Carney, Anapol Weiss, Philadelphia, PA, for petitioner.
Alexis B. Babcock, United States Department of Justice, Washington, DC, for respondent.
DECISION DISMISSING PETITION1
On August 8, 2014, Charles Thomas (“petitioner”) filed a petition as administrator of the
Estate of Cheryll Thomas, deceased, for compensation under the National Vaccine Injury Act of
1986, 42 U.S.C. §§ 300aa-10 et seq. (2012) (“Vaccine Act”). Petitioner alleged that as a result
of receiving an influenza (“flu”) vaccination on September 21, 2012, Ms. Thomas suffered
chronic inflammatory demyelinating polyneuropathy (“CIDP”). Petition at Preamble. On
February 2, 2016, petitioner filed a motion for a Dismissal Decision.2
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision 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). In accordance with Vaccine Rule 18(b), petitioner has 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
Petitioner’s motion was filed in the case management/electronic case filing (CM/ECF) system as a
“Motion to Voluntarily Dismiss pursuant to Rule 21(a).” A voluntary dismissal pursuant to Vaccine Rule
21(a) would not result in a judgment against petitioner, and would not preserve petitioner’s right to file a
civil suit. Based on the discussion during a February 2, 2016, status conference, it is clear that petitioner
is requesting a Dismissal Decision, resulting in the entry of judgment, rather than Voluntary Dismissal.
In addition, petitioner’s motion itself is titled “Motion for a Dismissal Decision,” and states that petitioner
intends to protect his rights to file a civil action in the future. Pet. Motion at 1-2. As such, petitioner’s
February 2, 2016, motion will be treated as a motion for a dismissal decision.
1
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 her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§
300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover any
evidence that the petitioner suffered a “Table Injury,” nor does petitioner allege that she suffered
a “Table Injury.” Further, the record does not contain persuasive evidence indicating that
petitioner’s alleged injury was caused by the influenza vaccine.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, 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 he suffered a “Table Injury” or that his injuries were caused-in-fact by a
vaccination. Thus, this case is dismissed for insufficient proof. In the absence of a motion
for review, the Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
2