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

REISSUED FOR PUBLICATION
JUN 9 2021
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe Wniteb $>tates '!Court of jfeberal '!Claims
OFFICE OF SPECIAL MASTERS
No. 21-1090V
(Not to be Published)
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BRANDI ROSE WILSON, *
*
* Chief Special Master Corcoran
Petitioner, *
* Dated: April 22, 2021
V. *
*
*
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
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Brandi Rose Wilson, Shawnee, KS, pro se Petitioner.
Heather Lynn Pearlman, U.S. Dep't of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION 1
On March 18, 2021, Brandi Rose Wilson filed a petition seeking compensation under the
National Vaccine Injury Compensation Program ("Vaccine Prograi:n"f Ms. Wilson alleged she
suffered adverse symptoms, including chest pain and inflammation, as a result of receiving two
doses of the Covid-19 vaccine, with the first administered on January 9, 2021. See generally
1
Although this Decision has been formally designated "not to be published," it will nevertheless be posted on the
Court of Federal Claims' website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision's inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction "of any
infonnation 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 l 8(b). Otherwise, the whole Decision will be available to the public.
Id.
2The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10-34 (2012)) (hereinafter "Vaccine Act" or "the Act").
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S .C. § 300aa.
Petition (ECF No. 1). A status conference was held on March 31, 2021, at which time I explained
to Ms. Wilson that her claim suffered from procedural deficiencies and could not proceed as filed.
See Docket Entry, dated Mar. 31, 2021.
As discussed at the March status conference, to be entitled to compensation under the
Vaccine Act, a petitioner must demonstrate that he or she received a vaccine listed on the Vaccine
Injury Table (the "Table"). See§ 1 l(c)(l)(A). Vaccines are added to this Table only after two steps
occur. First, compensation in the Program can only awarded to individuals "who have been injured
by vaccines routinely administered to children." H.R. Rep. 99-908, 1986 U.S.C.C.A.N. 6344 at 3.
Thus, the vaccine at issue must be designated by the Centers for Disease Control as appropriate
for children or pregnant women (even if it is also administered to adults). Second, an excise tax
must be enacted by Congress on each vaccine listed on the Table to provide funds for compensation
for possible injury resulting from a vaccine. The date the tax is enacted is the date a vaccine
becomes the basis for a claim in the Vaccine Program. See 26 U.S.C. § 4131(a); see also Omnibus
Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 13632(a)(3), 107 Stat. 312 (1993).
The Covid-19 vaccine does not yet appear on the Table, and is therefore not covered by
the Vaccine Program. Petitioner therefore cannot show that she "received a vaccine set forth in the
Vaccine Injury Table." Section 1 l(c)(l)(A). As a result, the petition must be dismissed. See, e.g.,
Danberry v. Sec '.Y of Health & Hum. Servs., No. 20-0778V, 2020 WL 6375330 (Fed. Cl. Spec.
Mstr. Sept. 28, 2020) (dismissing a claim seeking compensation for injuries incurred after
receiving Pneumovax-23 and Shingrix-two vaccines that are not set forth in the Table).
I also noted to Petitioner that despite my obligation to dismiss the claim at this time, it is
foreseeable that the Covid-19 vaccine will (in some form and at some time in the future) be added
to the Table. If so, it is possible that Petitioner would be able to re-file her claim under the Act's
"lookback" provision. Section 16(b)(2). Accordingly, Petitioner should be prepared to so act when
and if addition of the vaccine occurs.
2
CONCLUSION
Accordingly, and for the aforementioned reasons, the Petition is dismissed. In the absence
of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER
JUDGMENT in accordance with the terms of this decision. 3
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IT IS SO ORDERED.
✓
Brian H~orcoran
Chief Special Master
3
Pursuant to Vaccine Rule 1 l(a), the parties may expedite entry of judgment ifUointly or separately) they file notices
renouncing their right to seek review .
3