In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 11, 2020
* * * * * * * * * * * * *
KELLY CLARK, * UNPUBLISHED
*
Petitioner, * No. 18-1381V
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v. * Special Master Gowen
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SECRETARY OF HEALTH * Motion for Dismissal Decision;
AND HUMAN SERVICES, * Influenza (“Flu”) ; Immune
* Thrombocytopenic Purpura (“ITP”).
Respondent. *
* * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for respondent.
DECISION1
On September 11, 2018, Kelly Clark (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving an
influenza (“flu”) vaccination on October 19, 2015, she developed immune thrombocytopenic
purpura (“ITP”) and associated complaints of abnormal bleeding, bruising, and fatigue, with
residual effects for at least six months from the date of vaccination. Petition (ECF No. 1).
Petitioner filed medical records, an affidavit, and other supporting documentation
followed by a statement of completion on November 13, 2018. On July 19, 2019, respondent
filed a status report contending that petitioner did not suffer the residual effects or complications
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.
of her alleged injury for at least six months, as required to be eligible for compensation under the
Vaccine Act. On August 9, 2019, petitioner filed a responsive status report accompanied by
medical literature. Pet. Status Report (ECF No. 19); see also Ex 9. On August 12, 2019, I held a
status conference during which the severity requirement and other issues were discussed.
Scheduling Order (ECF No. 20). I directed petitioner to file additional evidence in support of
fulfilling the severity requirement, followed by an expert report. Thereafter, petitioner filed
additional medical records. She requested additional time to file a dispositive pleading instead of
an expert report, which was granted.
On March 10, 2020, petitioner filed a motion for a decision dismissing her petition.
Petitioner’s Motion (“Pet. Mot.”) (ECF No. 34). Petitioner avers that she consulted with an
expert and has concluded that she is unable to satisfy her burden of proof on causation. Id. at ¶
4. Although petitioner feels very strongly about what has happened to her and its connection to
vaccination, and has testified as to the facts under oath, petitioner feels at this juncture that she
will likely be unable to establish that she is entitled to compensation in the Vaccine Program. Id.
Under these circumstances, petitioner feels that to proceed further would be unreasonable and
would waste the resources of the Court and the Vaccine Program. Id. Petitioner understands that
a decision by the special master dismissing their petition will result in a judgment against her and
that such a judgment will end all of her rights in the Vaccine Program. Id. at ¶ 5. Petitioner
intends to protect her rights to file a civil action in the future. Id. Therefore, pursuant to 42
U.S.C. § 300aa-21(a)(2), she intends to elect to reject the Vaccine Program judgment against her
and elect to file a civil action at the appropriate time.
To receive compensation in the Vaccine Program, petitioner has the burden of proving
either: (1) that petitioner 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 petitioner suffered an injury that was caused-in-fact by a covered
vaccine. §§ 13(a)(1)(A); 11(c)(1). Additionally, petitioner must show that she experienced the
residual effects of her alleged injury for more than six months, or that her injury required a
hospitalization involving surgical intervention, or resulted in death. § 11(c)(1)(D). Moreover,
under the Vaccine Act, the Vaccine Program may not award compensation based on petitioner’s
claims alone. Rather, petitioner must support the claim with either medical records or the
opinion of a competent medical expert. § 13(a)(1). In this case, there is not persuasive evidence
that petitioner suffered a “Table injury”, therefore, petitioner is limited to alleging an off-Table
injury for which she has the burden of establishing causation-in-fact. There is also some
question as to whether the severity requirement is fulfilled. Upon review, the medical records
and the limited medical literature submitted are insufficient to establish entitlement. Petitioner
has consulted with an expert, but has not been able to submit an expert opinion in support of
vaccine causation-in-fact.
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3