In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-769V
(Filed: January 8, 2014)
* * * * * * * * * * * * * *
STEPHEN BUNDY, * NOT TO BE PUBLISHED
*
Petitioner, *
*
v. * Dismissal Decision; Pneumovax Not
* Listed On Vaccine Injury Table; Failure
SECRETARY OF * To State A Claim Upon Which Relief
HEALTH AND HUMAN SERVICES, * Can Be Granted.
*
Respondent. *
*
* * * * * * * * * * * * * *
Michael Williams, Buffalo, NY, for Petitioner.
Alexis Babcock, Washington, DC, for Respondent.
DISMISSAL DECISION1
On November 13, 2012, Stephen Bundy (“Petitioner”), filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (“Program”).2
1
Because this unpublished decision contains a reasoned explanation for the
undersigned’s decision in this case, the undersigned intends to post this ruling on the
United States Court of Federal Claims’ website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (Dec. 17, 2002). As
provided by Vaccine Rule 18(b), each party has 14 days within which to request
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).
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of
1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references
will be to 42 U.S.C. § 300aa of the Act.
1
In his petition, Petitioner alleged that he suffered injuries after receiving a pneumococcal
vaccination on November 11, 2009.3 Petitioner (“Pet.”) at 1, ECF No.1.
On February 6, 2013, Petitioner filed medical records and a statement of
completion. Filings, ECF No. 6. On March 4, 2013, this case was re-assigned to the
undersigned special master. Order, ECF No. 7. On the same date, Respondent filed a
status report identifying several items missing from the record. Status Report, ECF No.
8. One of the items identified by Respondent was Petitioner’s record of vaccination. Id.
On September 17, 2013, Petitioner filed an immunization consent form. Filing,
ECF No. 15.
On October 24, 2013, the undersigned held a telephonic status conference and
informed Petitioner that the Pneumovax vaccine he received is not listed on the Vaccine
Injury Table, and that Petitioner is therefore not eligible for compensation under the
Program because he cannot demonstrate that he “received a vaccine set forth in the
Vaccine Injury Table” as required by 42 U.S.C. § 300aa-11(c)(1)(a). See Scheduling
Order (non-pdf), Oct. 24, 2013.
Respondent filed a motion to dismiss on October 25, 2013, to which Petitioner
responded in opposition on November 20, 2013. Motion, ECF No. 16; Response, ECF
No. 18. The Motion to Dismiss is now ripe for consideration.
There are two types of pneumococcal vaccines used to vaccinate against
pneumococcus—pneumococcal conjugate and polysaccharide vaccine. The
polysaccharide vaccine is distributed under the brand name Pneumovax. Only the
former, the pneumococcal conjugate vaccine, is covered under the Vaccine Act. See
National Vaccine Injury Compensation Program: Addition of Pneumococcal Conjugate
Vaccines to the Vaccine Injury Table, 66 Fed. Reg. 28166 (May 22, 2001) (“Through this
notice, the Secretary announces that pneumococcal conjugate vaccines are now covered
vaccines under the National Vaccine Injury Compensation Program (NVICP), which
provides a system of no-fault compensation for certain individuals who have been injured
by covered childhood vaccines. This notice serves to include pneumococcal conjugate
vaccines under Category XIII (new vaccines) of the Vaccine Injury Table (Table) . . .
Because the CDC only recommended pneumococcal conjugate vaccines to the Secretary
for routine administration to children, polysaccharide-type pneumococcal vaccines are
not covered under the VCIP or included on the Table.”).
3
Petitioner also initially alleged that he suffered brachial neuritis, a Table injury,
following a September 27, 2007, Tdap vaccination, and referenced an influenza
vaccination, as well. However, in a status conference with the Court, Petitioner’s counsel
clarified that Petitioner only seeks compensation for injuries allegedly resulting from the
pneumococcal vaccination. See Order at 1, ECF No. 13.
2
To be entitled to compensation under the Vaccine Act, Petitioner must
demonstrate that he “received a vaccine set forth in the Vaccine Injury Table.” See
42 U.S.C. § 300aa-11(c)(1)(A).
The only immunization record submitted by Petitioner indicates that he received a
pneumococcal vaccination manufactured by Merck, Lot Number 1296X. ECF No. 15.
Although Petitioner’s Opposition to Respondent’s Motion to Dismiss lists a number of
mergers and acquisitions to which Merck has been a party over the last several years,
Petitioner has provided no facts disputing Respondent’s assertion (which is supported by
the undersigned’s own research), that “[t]he only pneumococcal vaccination Merck
manufactures is Pneumovax 23, which is a polysaccharide vaccine,”4 see Motion at 2,
ECF No. 16, not listed on the Table. In addition, while Petitioner asserts that “Mr.
Bundy’s vaccination consent record [was] completed by an unidentified person about
whom the parties know nothing including whether this individual had any personal
knowledge or basis for the information entered on the consent form with regard to the
vaccine manufacturer,” Response at 2, ECF No. 18, he has offered no alternative record
of his vaccination, no basis for suspecting that the manufacturer and lot number on the
record he did submit are erroneous, and no other facts from which a conclusion that he
received a covered vaccination can be derived. Accordingly, the undersigned concludes
that the Merck vaccine, Pneumovax, was the vaccine received by Petitioner. Pneumovax
is not a vaccine included on the Vaccine Injury Table.
As Petitioner received the Pneumovax vaccine and not the pneumococcal
conjugate vaccine, Petitioner is unable to show that he “received a vaccine set forth in the
Vaccine Injury Table.” 42 U.S.C. § 300aa-11(c)(1)(A). Therefore, the undersigned lacks
subject matter jurisdiction to adjudicate Petitioner’s claim. Alternatively, Petitioner has
failed to state a claim for which relief can be granted.5 The undersigned must dismiss
this petition.
4
See MerckVaccines.com, available at www.merckvaccines.com.
5
See Scanlon v. Sec’y of Health & Human Servs., No. 13-219V, 2013 WL
5755061 (Fed. Cl. Ct. Spec. Mstr. Sept. 27, 2013), aff’d, Scanlon v. Sec’y of Health &
Human Servs., No. 13-219V, slip op. (Fed. Cl. Dec. 17, 2013).
3
The clerk of the court is directed to dismiss Petitioner’s claim for lack of
jurisdiction or for failure to state a claim for which relief can be granted.6
IT IS SO ORDERED.
s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
6
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each
party’s filing a notice renouncing the right to seek review.
4