In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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TERRI E. SCRABRO, *
*
*
* No. 17-1604V
Petitioner, * Special Master Christian J. Moran
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v. *
* Filed: June 11, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
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Samantha P. Travis, Ogle Worm & Travis, PLLP, Kalispell, MT, for petitioner;
Ryan D. Pyles, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Terri Scarbro alleged that the influenza (“flu”) vaccine she received on
October 31, 2014, caused her to suffer Guillain-Barré Syndrome (“GBS”). Pet.,
filed Oct. 25, 2017, at 1. On May 20, 2021, Ms. Scarbro moved for a decision
dismissing her petition.
I. Procedural History
Terri Scarbro (“petitioner”) filed a petition on October 25, 2017. Along with
her petition, she filed relevant medical records. The Secretary then filed his Rule
4(c) report on September 18, 2018. In the report, the Secretary challenged
causation, particularly focusing on a lack of evidence regarding onset within an
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The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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.
appropriate time frame. Resp’t’s Rep. at 5-9. Petitioner filed an onset affidavit on
November 5, 2018. Between November 2018 and April 2019, petitioner submitted
additional medical records to support her claim.
At a status conference held on May 3, 2019, petitioner indicated a desire to
submit an expert report and the undersigned issued expert instructions. After
retaining Dr. Lock, petitioner requested a deadline of October 1, 2019, for her
expert report. Petitioner filed her expert report from Dr. Lock on February 7,
2020, after requested and being granted multiple extensions of time. The Secretary
filed his expert report from Dr. Callaghan on April 28, 2020. Petitioner and the
Secretary filed supplemental expert reports on October 4, 2020, and December 3,
2020, respectively.
On February 17, 2021, petitioner filed a status report stating that she did not
wish to file additional expert reports and had reached out to the Secretary to
determine whether the parties could enter into settlement negotiations. On
February 19, 2021, the Secretary filed a status report confirming that he did not
wish to engage in settlement negotiations.
On March 9, 2021, the undersigned issued an order for submissions in
advance of potential adjudication, along with a tentative finding regarding
entitlement. In this tentative finding, the undersigned found that, based on the
evidence submitted at that time, petitioner had not persuasively established a
diagnosis of GBS but, even if she had, “the likely onset is January 2015, which is
fairly long after her October 31, 2014 flu vaccination.” Tentative Finding Denying
Entitlement, filed Mar. 9, 2021, at 3. This was due to the relative qualifications of
the experts, as well as a lack of sufficient evidence regarding appropriate timing to
satisfy Althen prong 3.
A status conference was then held on March 17, 2021, in which petitioner
requested time to determine whether she wished to proceed with briefing or ask for
her case to be dismissed. On May 20, 2021, petitioner filed a motion for a decision
dismissing her petition. Respondent did not file a response to this motion. Thus,
this motion is ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that the
vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine
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Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A)
and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award
based solely on the petitioner’s claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent physician.
§ 300aa-13(a)(1).
In this case, petitioner filed medical records and expert reports in support of
her claim, but wishes to have her claim dismissed and judgment entered against
her. Though petitioner filed this motion pursuant to 42 U.S.C. § 300aa—21(a)
(regarding voluntary dismissal), the undersigned will construe this as a motion
filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary dismissal),
given petitioner’s clear intent that a judgment issue in this case, protecting her right
to file a civil action in the future. See Pet’r’s Mot., filed May 20, 2021, ¶¶ 3, 5.
To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, as addressed in the tentative finding denying
entitlement issued on March 9, 2021, based on the medical records and expert
reports submitted, petitioner has not met her burden to prove that the vaccine she
received caused GBS. As detailed in this tentative finding, respondent’s expert Dr.
Callaghan has superior qualifications regarding the diagnosis and treatment of
GBS. Petitioner also failed to present sufficiently persuasive evidence to establish
(1) diagnosis of GBS, and (2) appropriate timing that would satisfy Althen prong 3.
If petitioner is unlikely to establish the threshold requirement of a diagnosis or
prong 3, it follows that petitioner cannot establish prong 1 or prong 2. See Caves
v. Sec’y of Health & Human Servs., 100 Fed. Cl. 199, 145 (2011), aff’d without
op., 463 Fed. App’x 932 (Fed. Cir. 2012).
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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