Filed: Apr. 02, 2018
Latest Update: Apr. 02, 2018
Summary: UNPUBLISHED DECISION DISMISSING PETITION 1 THOMAS L. GOWEN , Special Master . On January 16, 2018, Terrance Monk filed a pro se petition on behalf of his minor daughter in the National Vaccine Injury Compensation Program ["Program"]. 2 Petitioner alleged that his daughter suffered an anaphylactic reaction as a result of a DTaP and/or Polio vaccination administered on or about October 16, 2017. Petition at 1-2, [ECF No. 1]. For the reasons stated herein, petitioner's claim is dismissed
Summary: UNPUBLISHED DECISION DISMISSING PETITION 1 THOMAS L. GOWEN , Special Master . On January 16, 2018, Terrance Monk filed a pro se petition on behalf of his minor daughter in the National Vaccine Injury Compensation Program ["Program"]. 2 Petitioner alleged that his daughter suffered an anaphylactic reaction as a result of a DTaP and/or Polio vaccination administered on or about October 16, 2017. Petition at 1-2, [ECF No. 1]. For the reasons stated herein, petitioner's claim is dismissed ..
More
UNPUBLISHED
DECISION DISMISSING PETITION1
THOMAS L. GOWEN, Special Master.
On January 16, 2018, Terrance Monk filed a pro se petition on behalf of his minor daughter in the National Vaccine Injury Compensation Program ["Program"].2 Petitioner alleged that his daughter suffered an anaphylactic reaction as a result of a DTaP and/or Polio vaccination administered on or about October 16, 2017. Petition at 1-2, [ECF No. 1]. For the reasons stated herein, petitioner's claim is dismissed for failure to meet the severity requirements of 42 U.S.C. § 300aa-11(c)(1)(D).
I. Procedural History
Petitioner filed his petition without accompanying medical records on January 16, 2018.3 Petitioner also filed a Motion to Proceed in forma pauperis that same day. ECF No. 4. On March 29, 2018, the undersigned held an initial status conference with petitioner and respondent's counsel, which was digitally recorded. During the status conference, the undersigned reviewed petitioner's financial situation and granted his Motion to Proceed in forma pauperis. An order reflecting the same will be issued separately.
The undersigned then reviewed petitioner's claim. Petitioner stated that within hours of receiving the vaccination(s), his daughter "began feeling faint, [turning] blue, [and] swelling in her lips and throat." Petition at ¶ 6. Petitioner's daughter presented to the emergency room, and petitioner noted that the doctor "determined she suffered a form of anaphylactic reaction and prescribed Benadryl." Id. at ¶ 7. Petitioner's daughter then presented for follow-up appointments and missed school, which petitioner notes was a hardship on the child's mother. Id. at ¶¶ 7-8.
Petitioner provided an update on his daughter's condition during the initial status conference. She was fully recovered in the days following the vaccination(s) and currently has no residual issues related to the anaphylactic reaction.
II. Conclusion
A petitioner must establish entitlement to compensation in the Vaccine Program through one of two ways. The first way is to establish that he or she suffered a "Table Injury," i.e., that he or she received a vaccine listed on the Vaccine Injury Table ["Table"] and subsequently developed a corresponding injury within a corresponding period of time. § 300aa-11(c)(1). The second way is to establish that the vaccine actually caused the onset or significant aggravation of a condition in the vaccinee. 42 U.S.C. § 300aa-13(a)(1)(A). To prove actual causation, petitioner must present: (1) a medical theory; (2) a logical sequence of cause and effect; and (3) a medically acceptable temporal relationship between the vaccination and the injury. Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005).
In the present case, petitioner alleges a Table injury. See Petition at ¶ 9. Both the DTaP and Polio vaccines are listed on the Table and both list anaphylaxis as a Table injury if it manifested within four hours.4 42 U.S.C. § 300aa-14.
However, to be eligible for compensation, petitioners in the Program must as a threshold matter demonstrate that they meet the severity requirement of 42 U.S.C. § 300aa-11(c)(1)(D), which provides:
A petition for compensation under the Program for a vaccine-related injury or death shall contain . . . . an affidavit, and supporting documentation, demonstrating that the person who suffered such injury . . . . suffered the residual effects or complications of such illness, disability, injury, or condition for more than 6 months after the administration of the vaccine.
42 U.S.C. § 300aa-11(c)(1)(D) (emphasis added).
The undersigned appreciates the hardship incurred by petitioner's daughter and family to treat her anaphylactic reaction and to attend follow-up appointments, requiring petitioner's daughter to miss school and her mother to miss work. However, per petitioner's representation during the initial status conference, his daughter's condition resolved within days after vaccination and no residual effects or complications have persisted for greater than six months. As such, the injury does not meet the threshold requirements of the Vaccine Act, and it is therefore appropriate to dismiss the claim.
Pursuant to Rule 21(b) of the Rules of the United States Court of Federal Claims, this claim is DISMISSED for petitioner's failure to meet the severity requirement of 42 U.S.C. § 300aa-11(c)(q)(D). The Clerk of the Court shall enter accordingly.
IT IS SO ORDERED.
