In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
***************** *** *
LUCILLE DALPE, * No. 13-602V
* Special Master Christian J. Moran
Petitioner, *
* Filed: October 8, 2013
v. *
* Motion to dismiss petition;
SECRETARY OF HEALTH * Pneumococcal vaccine
AND HUMAN SERVICES, *
*
Respondent. *
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Heather M. Bonnet-Hebert, Mandell, Schwartz & Boisclair, Ltd., Providence, RI,
for petitioner;
Lisa A.Watts, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION GRANTING MOTION TO DISMISS 1
On August 22, 2013, Lucille Dalpe filed a petition seeking compensation
under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”). 42
U.S.C. §300a-1 to 34. Ms. Dalpe’s petition alleged that she developed shoulder
injury related to vaccine administration (“SIRVA”), as a result of receiving the
pneumococcal vaccine, Pneumovax, on November 2, 2011.2 Pet. at 1; exhibit 1A
at 14.
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The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
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Pneumovax is the brand name for a polysaccharide-type vaccine used to vaccinate
against pneumococcus. The Pneumovax vaccine consists of a “mixture of highly purified
capsular polysaccharides from the 23 most prevalent or invasive pneumococcal types of
Streptococcus pneumoniae, including the six serotypes that most frequently cause invasive drug
resistant pneumococcal infections among children and adults in the United States.” Physicians'
Desk Reference, 1994 (55th ed.2001).
For the reasons explained below, Ms. Dalpe is unable to demonstrate that
she “received a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. §
300aa11(c)(1)(a). Consequently, her petition is DISMISSED.
I. Factual and Procedural History
On the morning of November 2, 2011, Ms. Dalpe received a Pneumovax
vaccination in her upper right arm. Pet. at 1; exhibit 1A at 14. Later that same
day, Ms. Dalpe sought treatment at Barrington Urgent Care for pain, redness and
swelling in her upper right arm. Pet. at 2. Following vaccination, Ms. Dalpe
continued to seek treatment, including physical therapy, for pain and decreased
range of motion in her right arm. Pet. at 2-4.
On August 22, 2013, Ms. Dalpe filed a petition seeking compensation for
her injuries. Pet. at 1. With her petition, Ms. Dalpe filed an affidavit from Dr. Todd
Handel (exhibit 1), a set of medical records (exhibits 1A-1G), and information
regarding a proposed vaccine injury table update (exhibit 2). Following the filing
of Ms. Dalpe’s petition, the Court ordered respondent to file her Rule 4 report by
November 20, 2013, and set a status conference for September 23, 2013.
On September 10, 2013, prior to the scheduled status conference, respondent
filed a motion to dismiss Ms. Dalpe’s petition for failure to state a claim upon
which relief may be granted. Resp’t Mot. at 1. In her motion, respondent argues
that Ms. Dalpe cannot receive compensation for her alleged injuries because the
vaccine she received, Pneumovax, is not listed in the Vaccine Injury Table, 42
C.F.R. § 100.3 (a). Resp’t Mot. at 1-2.
An initial status conference was held on September 23, 2013. At this
conference, the parties discussed whether the pneumococcal polysaccharide
vaccine was covered by the Vaccine Act. Ms. Dalpe requested additional time to
A number of cases have concerned the Pneumovax vaccine; all have resulted in
dismissals. See Schmidt v. Sec'y of Health & Human Servs., 11-401V, 2011 WL 6148590 (Fed.
Cl. Nov. 21, 2011); Evans v. Sec'y of Health & Human Servs., No. 08–365V, 2008 WL 2683299
(Fed. Cl. June 19, 2008); Morrison v. Sec'y of Health & Human Servs., No. 04–1683, 2005 WL
2008245 (Fed.Cl. July 26, 2005); Finley v. Sec'y of Health & Human Servs., No. 04–874V, 2004
WL 2059490 (Fed. Cl. Aug. 24, 2004).
The alternative type of vaccine used to vaccinate against pneumococcus is the conjugate-
type vaccine. The conjugate-type of pneumococcal vaccine is expressly covered under Category
XII of the Vaccine Injury Table. 42 C.F.R. § 100.3(a)(XII) (2010); see also 66 Fed.Reg. 28,166
(May 22, 2001) (placing conjugate-type pneumococcal vaccine on the Vaccine Injury Table).
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reply to respondent’s motion. On September 25, 2013, the Court issued an order
granting Ms. Dalpe an extension for her reply until October 4, 2013.
On October 4, 2013, Ms. Dalpe filed a motion for decision on the record
incorporating by reference the facts and legal arguments set forth in her petition.
Pet’r Mot. at 1.
II. Standards for Adjudication
The court may dismiss a petition for failure to state a claim, pursuant to
RCFC 12(b)(6). To properly state a claim, the petitioner must provide “a short and
plain statement of the claim, which shows that the petitioner is entitled to relief.”
Totes-Isotoner Corp. v. United States, 594 F.3d 1346 (Fed. Cir. 2010), quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need
detailed factual allegations, but “factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. at 555.
III. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), Ms. Dalpe must first prove that she “received
a vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa11(c)(1)(a).
Ms. Daple’s medical records indicate that she received Pneumovax 23 vaccine
from Merck on November 2, 2011. See Exhibit 1A at 14-17. Pneumovax 23,
however, is not listed on the Vaccine Injury Table. 42 C.F.R. § 100.3(a).
The Vaccine Act expressly authorizes the United States Department of
Health and Human Services to revise the Vaccine Injury Table. See 42 U.S.C. §
300aa-14(c)(1). When adding vaccines to the Vaccine Injury Table after August 1,
1993, the Act states that the Secretary of the United States Department of Health
and Human Services shall “amend the Vaccine Injury Table,” only after the
Centers for Disease Control and Prevention “recommends a vaccine to the
Secretary for routine administration to children.” The Secretary of the United
States Department of Health and Human Services has two years from the date of
the Centers for Disease Control and Prevention’s recommendation within which to
amend the Table. § 300aa-14(e)(2). In addition, Congress must approve an excise
tax providing funds for the payment of compensation related to any vaccine that
the Secretary of the United States Department of Health and Human Services adds
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to the Table. 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) (stating that a
revision by the Secretary shall take effect upon the effective date of a tax enacted
to provide funds for compensation paid with respect to the vaccine to be added to
the Vaccine Injury Table).
The Secretary of the United States Department of Health and Human
Services has not published a notice of coverage related to Pneumovax, and
Congress has not enacted an excise tax related to Pneumovax. Therefore,
Pneumovax is not included under Category XIII of the Vaccine Injury Table.
Congress has restricted compensation to only those people who “received a
vaccine set forth in the Vaccine Injury Table.” 42 U.S.C. § 300aa-11(c)(1)(a). As
explained above, Ms. Dalpe has not established that she meets this criterion for
compensation. Any suggestion that a special master overlook this requirement
would exceed the authority given to special masters. See Martin v. Sec’y of Health
& Human Servs., 62 F.3d 1403, 1405 (Fed. Cir. 1995); Schumacher v. Sec’y of
Health & Human Servs., 2 F.3d 1128, 1135 n.12 (Fed. Cir. 1993) (stating “a
waiver of sovereign immunity must be ‘unequivocally expressed’ and not merely
implied by a court”); Jessup v. Sec’y of Health & Human Servs., 26 Cl. Ct. 350,
352-53 (1992) (“limitations and conditions upon which the Government consents
to be sued must be strictly observed and exceptions thereto are not to be implied”).
Ms. Dalpe cannot demonstrate that she “received a vaccine set forth in the
Vaccine Injury Table.” 42 U.S.C. § 300aa-11(c)(1)(a). When a person seeking
compensation from the government does not comply with the exact terms of the
statute, the court may not grant relief. See Inter-Coastal Xpress, Inc. v. United
States, 296 F.3d 1357, 1373 (Fed. Cir. 2002). Therefore, her petition is
DISMISSED.
IV. Conclusion
For the reasons explained above, respondent’s motion to dismiss is
GRANTED and Ms. Dalpe’s petition is DISMISSED. The Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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