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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 23, 2020
* * * * * * * * * * * * * UNPUBLISHED
MARY FINCH, *
* No. 18-1680V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Dismissal Decision;
AND HUMAN SERVICES, * Influenza (“Flu”); Intradermal
* Administration; Shoulder Injury
Respondent. * Related to Vaccine Administration
* * * * * * * * * * * * * (“SIRVA”).
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Lisa A. Watts, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On October 31, 2018, Mary Finch (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.2 Petitioner alleged that as a result of receiving an influenza
vaccine on November 14, 2017, she developed a shoulder injury related to vaccine
administration (“SIRVA”). Petition (ECF No. 1). The information in the record, does not
establish entitlement to compensation.
On April 23, 2020, petitioner filed a motion for a decision dismissing the petition.
Petitioner’s Motion (“Pet. Mot.”) (ECF No. 30). An investigation of the facts and science
supporting her case has demonstrated to petitioner that she will be unable to prove that she is
entitled to compensation in the Vaccine Program. Id. at ¶ 1. In these circumstances, to proceed
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
opinion. 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-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
any further would be unreasonable and would waste the resources of the Court, the Respondent,
and the Vaccine Program. Id. at ¶ 2. Petitioner understands that a decision dismissing her
petition will result in a judgment against her. Id. at ¶ 3. She has been advised that such a
judgment will end all of her rights in the Vaccine Program. Id. Petitioner understands that she
may apply for fees and costs once her case is dismissed and judgment is entered against her. Id.
at ¶ 4. Respondent expressly reserves the right, pursuant to 42 U.S.C. § 300aa-15(e), to question
the good faith and reasonable basis of the claim and to oppose, if appropriate, the application for
fees and costs. Id.
To receive compensation in the Vaccine Program, petitioner has the burden of proving
either: (1) that she suffered a “Table Injury,” i.e., an injury beginning within a specified period of
time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a “Table
injury”) or (2) that she suffered an injury that was caused-in-fact by a covered vaccine. §§
13(a)(1)(A); 11(c)(1). An examination of the record does not contain persuasive evidence that
petitioner suffered a “Table Injury.” Namely, the Table lists SIRVA only in association with
vaccinations that are administered (injected) into a muscle. 42 C.F.R. § 100.3(c)(10). In this
case, petitioner received an intradermal vaccination. Pet. Ex. 3 at 42. Thus, she is limited to
alleging causation-in-fact. The record does not contain persuasive evidence indicating that
petitioner’s injury was caused or in any way related to the vaccine which she received.
Moreover, under the Vaccine Act, the Vaccine Program may not award compensation
based on the petitioner’s claims alone. Rather, the petitioner must support the claim with either
medical records or the opinion of a competent medical expert. § 13(a)(1). In this case, the
medical records are insufficient to establish entitlement and petitioner has not submitted an
expert report or medical literature.
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2