CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0778V
UNPUBLISHED
SHARON DANBERRY, Chief Special Master Corcoran
Petitioner, Filed: September 28, 2020
v.
Pre-Assignment Review (PAR);
SECRETARY OF HEALTH AND Decision on Motion to Dismiss;
HUMAN SERVICES, Uncovered Vaccines; Pneumovax-23
(PCV23) Vaccine; Shingles Vaccine
Respondent.
Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On June 26, 2020, Sharon Danberry filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered an adverse drug reaction, cellulitis,
and soft tissue necrosis which were caused by the Pneumovax-23 (PCV23) and
Shingrix (RZV) vaccinations she received on November 4, 2019. Petition at 1.
On September 8, 2020, Petitioner filed a motion for a decision dismissing her
petition. (ECF No. 10). For the reasons set forth below, Petitioner’s motion is GRANTED,
and this claim is hereby DISMISSED.
Ms. Danberry filed her petition on June 26, 2020. (ECF No. 1). She filed medical
records and a Statement of Completion on July 9, 2020. See Exhibits 1-5 (ECF Nos. 6-
8). After a review of the petition and medical records filed in this case, I issued an Order
1
Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will be
available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has
14 days to identify and move to redact medical or other information, the disclosure of which would constitute
an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this
definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
to Show Cause why this case should not be dismissed as the vaccines alleged to have
caused the injury are not covered by the Vaccine Program. (ECF No. 9).
On September 8, 2020, Petitioner filed a motion for a decision dismissing her
petition stating that “[a]n investigation of the facts and science supporting her case has
demonstrated that [she] will not be able to prove that she is entitled to compensation in
the Vaccine Program.” (ECF No. 10). Petitioner states that it would be unreasonable to
proceed and that she understands that a decision dismissing her petition will result in a
judgment against her. Id. Petitioner further indicated that she “understands that a decision
by the Special Master dismissing her petition will result in a judgment against her. She
has been advised that such a judgment will end her rights in the Vaccine Program.” Id. at
2.
To be entitled to compensation under the Vaccine Act, a petitioner must
demonstrate that he or she received a vaccine set forth in the Vaccine Injury Table (the
“Table”). See §11(c)(1)(A). Compensation is awarded only to individuals “who have
been injured by vaccines routinely administered to children.” H.R. Rep. 99-908, 1986
U.S.C.C.A.N. 6344 at 3.
“There are two types of pneumococcal vaccines . . . pneumococcal conjugate
and polysaccharide vaccine[s].” Bundy v. Sec’y of Health & Human Servs., No. 12-
769V, 2014 WL 348852, at *1 (Fed. Cl. Spec. Mstr. Jan. 8, 2014). Only pneumococcal
conjugate vaccines, routinely administered to children, are covered by the Vaccine
Program. See Morrison v. Sec’y of Health & Human Servs., No. 04-1683, 2005 WL
2008245, at *1 (Fed. Cl. Spec. Mstr. July 26, 2005) (describing how and when
pneumococcal conjugate vaccines were added to the Vaccine Table).
Likewise, the shingles vaccine, Shingrix, does not appear in the Table and is
therefore not covered by the Vaccine Program. Previous petitions seeking
compensation for injury resulting from the shingles vaccine have been dismissed. See,
e.g., Scanlon v. Sec’y of Health & Human Servs., No. 13-219V, 2013 WL 5755061 (Fed.
Cl. Spec. Mstr. Sept. 27, 2013), aff’d, 114 Fed. Cl. 135 (2013); Nilsen v. Sec’y of Health
& Human Servs/, No. 10-110V, 2010 WL 1753471 (Fed. Cl. Spec. Mstr. Apr. 6, 2010);
Doe/44 v. Sec’y of Health & Human Servs., No. [redacted]V, 2009 WL 3124758 (Fed.
Cl. Spec. Mstr. Sept. 25, 2009); Doe/47 v. Sec’y of Health & Human Servs., No.
[redacted]V, 2009 WL 3416368 (Fed. Cl. Spec. Mstr. Sept. 10, 2009).
Petitioner received a pneumococcal polysaccharide and shingles vaccine. As
such, Petitioner is unable to show that she “received a vaccine set forth in the Vaccine
Injury Table.” §11(c)(1)(A). Thus, Petitioner cannot receive compensation on a claim
based on a non-covered vaccine through the Vaccine Program, and the petition must be
dismissed. See, e.g., Cielencki v. HHS, No. 15-632V, 2015 WL 10767150, at *3 (Fed.
Cl. Spec. Mstr. Dec. 22, 2015).
2
Petitioner has failed to demonstrate that she was injured by a vaccine covered
under the Vaccine Program. This case is dismissed for failure to state a claim upon
which relief can be granted. The clerk shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
3