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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 7, 2020
* * * * * * * * * * * * * * * * * * *
PATRICIA MURRAY, * UNPUBLISHED
*
Petitioner, * No. 19-424V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Petitioner’s Motion for Judgment on the
AND HUMAN SERVICES, * Record; Influenza (“Flu”) Vaccine;
* Erythema Rash; Skin Condition.
Respondent. *
*
* * * * * * * * * * * * * * * * * * *
Carol L. Gallagher, Carol L. Gallagher, Esquire LLC, Somers Point, NJ, for petitioner.
Sarah C. Duncan, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On March 21, 2019, Patricia Murray (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that as
a result of the influenza (“flu”) vaccine administered on February 15, 2018, she suffered from
“erythema rash/skin related injury, and/or aggravation of a pre-existing skin condition.” Petition
at Preamble (ECF No. 1). The information in the record, however, does not show entitlement to
an award under the Program. Therefore, the petition must be dismissed.
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
I. PROCEDURAL HISTORY
On March 21, 2019, petitioner filed her petition. Petition (ECF No. 1). Petitioner filed
medical records and an affidavit from April to October 2019. Petitioner’s Exhibits (“Pet. Exs.”)
1-11. On April 10, 2020, respondent filed his Rule 4(c) Report, recommending against
compensation. Respondent’s Report (“Resp. Rept.”) at 1 (ECF No. 25). Thereafter, additional
records were filed from April to September 2020. Pet. Exs. 12-14.
On September 15, 2020, the undersigned ordered petitioner to file an expert report by
November 16, 2020. Order dated Sept. 15, 2020 (ECF No. 37). On November 10, 2020,
petitioner filed medical literature. Pet. Ex. 15. Petitioner did not file an expert report.
On November 16, 2020, petitioner moved for a judgment on the record. Pet. Motion for
Judgment on the Existing Record (“Pet. Mot.”), filed Nov. 16, 2020 (ECF No. 40). Petitioner
argued that although no expert reports were filed in this case, “there is significant evidence to
substantiate an exacerbation of a mostly quiescent psoriasis prior to the flu vaccine
administration, which exacerbated within a couple of days of the [flu] vaccine.” Id. at ¶ 19.
Additionally, petitioner maintained that “there are genuine issues of material fact that warrant
this case to remain in the vaccine forum and respectfully defer[ed] to a decision of the Special
Master.” Id. at ¶ 21. Petitioner noted that if entitlement is denied, petitioner intends to file a
civil action against the vaccine administrator and/or manufacturer and file an election to preserve
her civil actions. Id. at ¶¶ 23-24.
Respondent filed a response to petitioner’s motion, recommending this case be dismissed
because petitioner failed to provide preponderant evidence in support of her claim. Resp.
Response to Pet. Mot. (“Resp. Response”), filed Nov. 30, 2020, at 7 (ECF No. 41). Respondent
maintained that petitioner cannot satisfy the severity requirement under the Vaccine Act. Id. at
4. Even if petitioner can meet the severity requirement, respondent argued that petitioner cannot
satisfy her burden under Althen. Id. at 4-6.
This matter is now ripe for adjudication.
II. ANALYSIS
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 the vaccination, or (2) that she suffered an injury that was actually caused by the vaccination.
See §§ 11(c)(1), 13(a)(1)(A). The records submitted by petitioner show that she 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 & Hum.
Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).
The undersigned agrees with respondent that petitioner has failed to establish by
preponderant evidence her burden of proof under Althen v. Secretary of Health & Human
2
Services, 418 F.3d 1274, 1280 (Fed. Cir. 2005) or Loving v. Sec’y of Health & Hum. Servs., 86
Fed. Cl. 135 (2009). In this case, petitioner failed to provide an expert report in support of
causation or significant aggravation. The medical records and medical literature alone do not
provide preponderant evidence. Even though some medical providers suggested that petitioner’s
condition could have been due to her flu vaccination, these statements, along with the medical
records and literature filed, do not provide preponderant evidence of causation or significant
aggravation on their own. Petitioner has not offered a sound and reliable theory establishing that
the flu vaccine can and did cause petitioner’s skin condition.
III. CONCLUSION
The undersigned has reviewed the medical records and all of the information in the
record, and finds petitioner has failed to establish that she has sustained a vaccine-related injury
by preponderant evidence.
Accordingly, in light of petitioner’s motion, and based upon her review of the record,
and petitioner’s failure to file an expert report, 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
3