Raymer v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 6, 2020
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
JESSICA RAYMER, *
* No. 18-794V
Petitioner, *
* Special Master Dorsey
v. *
* Petitioner’s Motion for Decision Dismissing
SECRETARY OF HEALTH * Her Petition; Human Papillomavirus
AND HUMAN SERVICES, * (“HPV”) Vaccine; Postural Orthostatic
* Tachycardia Syndrome (“POTS”); Chronic
Respondent. * Fatigue Syndrome; Median Arcuate
* Ligament Syndrome (“MALS”); Joint
* Hypermobility.
* * * * * * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On June 5, 2018, Jessica Raymer2 (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Program”)3 alleging that as a
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 petition was originally filed by Jessica Raymer’s mother, Lynann Raymer, on behalf of her
minor child, J.R. Petition at 1. Jessica Raymer reached the age of majority on September 9,
2018, and on December 11, 2018, the Court granted petitioner’s motion to amend the case
caption to reflect Jessica Raymer as the proper petitioner. Order dated Dec. 11, 2018 (ECF No.
16).
3
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.
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result of the human papillomavirus (“HPV”) vaccination administered on June 22, 2015, she
suffered postural orthostatic tachycardia syndrome (“POTS”), chronic fatigue syndrome, median
arcuate ligament syndrome (“MALS”), and joint hypermobility. Petition at 1, 5. The
information in the record, however, does not show entitlement to an award under the Program.
On July 3, 2020, petitioner moved for a decision dismissing her case, stating that “she
would like to opt out of the Vaccine Program . . . to pursue a third party action in district court
against Merck directly.” Petitioner’s Motion for a Decision Dismissing Her Petition, filed July
3, 2020, at ¶ 3 (ECF No. 59). Petitioner states that she understands that a decision by the Special
Master will result in a judgment against her, and that she has been advised that such judgment
will end all of her rights under the Vaccine Act. Id. at ¶ 4. Petitioner states that she intends to
protect her right to file a civil action and to elect to reject the Vaccine Program judgment to file a
civil action. Id.
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 §§ 13(a)(1)(A) and 11(c)(1). 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 & Human
Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).
Accordingly, in light of petitioner’s motion and a review of the record, 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
2