Miller v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-898V Filed: September 28, 2017 * * * * * * * * * * * * * * Special Master Sanders GIDGET MILLER, * * Dismissal; Insufficient Proof; Human Petitioner, * Papillomavirus (“HPV”) Vaccine; Varicella * Vaccine; Narcolepsy; Cataplexy; Neurologic v. * And/Or Physical Impairments. * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Michael McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner. Ilene Albala, U.S. Department of Justice, Washington, DC, for Respondent. DECISION1 On July 27, 2016, Monica Miller filed a petition on behalf of her minor daughter, Gidget Miller (“Petitioner”), for compensation under the National Vaccine Injury Compensation Program2 (“the Program”). Petitioner alleges that the human papillomavirus (“HPV”) and/or varicella vaccinations administered on August 8, 2013, and/or the HPV vaccination administered on October 22, 2013, resulted in either the development of or significant aggravation of Petitioner’s narcolepsy, cataplexy, neurologic and/or physical impairments and other injuries. See Petition (“Pet.”) at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Act. 1 This decision shall be posted 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). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted 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,” “the Act,” or “the Program”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act. 1 On September 28, 2017, Petitioner moved for a decision dismissing her claim. See Motion for Decision Dismissing the Petition (“Mot.”), ECF No. 32. In her Motion, Petitioner concedes that she “has been unable to secure sufficient and/or persuasive evidence to prove entitlement to compensation in the Vaccine Program.” Id. at 1. Furthermore, Petitioner states that “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, Respondent, Petitioner, and the Vaccine Program.” Id. Petitioner filed this motion without opposition from Respondent. Thus, this matter is now ripe for decision. 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 her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Petitioner’s alleged injuries were caused or significantly aggravated by her HPV and/or varicella vaccinations. Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and Petitioner has not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 2