In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

N0. 14-226V
(Not to be published)
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BRIDGET SULLIVAN, for *
JAMES SULLIVAN, * Filed: August l2, 2014
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Petitioner, *
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v. * Dismissal Decision;
* RCFC l2(b)(6);
SECRETARY OF HEALTH AND * Vaccine not covered;
HUMAN SERVICES, * Denial Without Hearing
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Respondent. *
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Bridget Sullivan, Pro Se Petitioner.
Tara J. Kilfoyle, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING CASEl

On March 24, 20l4, Petitioner Bridget Sullivan filed an action on behalf of James
Sullivan seeking compensation under the National Vaccine Injury Compensation Program (the
"Vaccine Program")z. Petitioner alleges that James suffered chronic muscle aches, pains,
tremors, immune dysfunction, and cardiac problems as a result of receiving the Pandemrix
influenza ("flu") vaccine.

1 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the United
States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. N0. 107-347, §
205, ll6 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C §
300aa-l2(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential
information. To do so, Vaccine Rule l8(b) permit each party 14 days within which to request redaction "of any
information furnished by that party: (l) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar tiles, the disclosure of which would constitute
a clearly unwarranted invasion of privacy." Vaccine Rule l8(b). Otherwise, the decision will be available to the

public. Ia'.

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. N0. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C.A. § 300aa-l0-§ 300aa-34
(West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A.

§ 300aa.

Petitioner did not submit a filing fee with her petition, but instead moved for leave to
proceed in forma pauperz's. On April 8, 2014, l issued an Order denying Petitioner’s motion
because it did not fully substantiate Petitioner’s entitlement to a waiver of her filing fee in this
case.3 Thereafter on July 9, 2014, Respondent’s counsel filed a motion to dismiss arguing that
the vaccine at issue is not covered under the Act, and that Petitioner has not alleged that James is
within the category of individuals who are eligible to receive compensation under the Act.

A Vaccine Program petition may be dismissed for failure to state a claim pursuant to the
U.S. Court of Federal Claims Rule l2(b)(6). That rule requires a petitioner to provide "a short
and plain statement of the claim, which shows that the petitioner is entitled to relief. " Totes-
lsotner Corp. v. United States, 594 F3d 1346 (Fed. Cir. 2010), (quoting Bell Atl. Co)"p. v.
Twombly, 550 U.S. 544,555 (2007)); Scanlon v. Sec'y ofHealth & Human Servs., N0. l3-2l9V,
2013 WL 5755061 (Fed. Cl. Sept. 27, 2013) a]j"ci, 114 Fed. Cl. 135 (Fed. Cl. 2013).

ln her Motion to Dismiss, Respondent correctly states that "to be entitled to
compensation under the Vaccine Act, petitioner must demonstrate that James ‘received a vaccine
set forth in the Vaccine Injury Table.’ " Resp’t’s Motion to Dismiss at 3 (ECF N0. 6) (citing §
ll(c)(l)(a)). ln this case, Ms. Sullivan alleges that James’ injuries were caused by the Pandemrix
vaccine, but that vaccine is not covered under the Act. 42 C.F.R. §100.3. The Pandemrix vaccine
is a monovalent flu vaccine administrated in several European countries during the HlNl
pandemic. The Act, by contrast, only covers trivalent flu vaccines and other seasonal flu
vaccines. See 42 C.F.R. § 100.3 (a)(XlV); Aguayo v. Secj) ofHeallh & Human Servs., N0. 12-
563V, 2013 WL 441013, at *l (Fed. Cl. Sp. Mstr. Jan 15, 2013). The Secretary has not published
a notice of coverage with respect to this monovalent HlNl vaccine, and Congress has not
enacted an excise tax related to monovalent HlNl flu vaccine. Schmz'a't v. Health & Human
iS`e/'vs., N0. ll-40lV, 2011 6148590 (Fed. Cl. Sp. Mstr. Nov. 21, 2011).4

Because of the above, there is insufficient evidence upon which an entitlement award
could be based. To receive compensation under the Program, Petitioner must prove either l) that
James suffered a "Table lnjury" - i.e., an injury falling within the Vaccine Injury Table -
corresponding to one of her vaccinations, or 2) that he suffered an injury that was actually caused
by a vaccine. See §§13(a)(1)(A) and ll(c)(l). An examination of the record, however, did not
uncover any evidence that James suffered a "Table Injury." Further, Petitioner cannot establish
James was injured by a covered vaccine.

3 To date, Petitioner has never paid the filing fee nor filed a proper inf'orma pauperis motion.

" The Vaccine Act expressly authorizes the United States Department of I-lealth and Human Services to revise the
Vaccine Injury Table. See 42 U.S.C. §300aa-l4(c)(l). The Act provides that the Secretary of United States
Department of Health and Human Services shall "amend the Vaccine injury Table," only after the Centers for
Disease Control and Prevention "recommends a vaccine to the Secretary for routine administration to children. Ia'.
The Secretary of Health and Human Services has two years from the date of the Centers for Disease Control and
Prevention’s recommendation within which to amend the Table. §300aa-l4(e)(2). ln addition, Congress must
approve an excise tax providing funds for the payment of compensation related to any vaccine that the Secretary of
Hea|th and Human Services adds to the Table. See 26 U.S.C. §413l(a).

2

I am very sympathetic to James’ plight. But it is evident from the record that Ms. Sullivan
has failed to demonstrate that her son received a vaccine set forth in the Vaccine Injury Table.

Accordingly, this case is dismissed for failure to state a claim upon which relief may
be granted. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

 

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Brian H. Corcoran
Special Master

