The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 26, 2021
* * * * * * * * * * * UNPUBLISHED
KATHERINE DOHERTY, *
* No. 15-1429V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Decision Dismissing Claim;
AND HUMAN SERVICES, * Tetanus-diphtheria-acellular pertussis
* (Tdap); Loss of Vision; Behcet’s disease;
Respondent. * Uveitis; Vasculitis.
* * * * * * * * * * *
Joseph L. Doherty, Jr., The Doherty Law Firm, Woburn, MA, for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On November 25, 2017, Katherine Doherty (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petition (ECF No. 1); see also Amended Petition filed
February 15, 2018 (ECF No. 48). Petitioner alleged that as a result of a tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccination received on June 10 or 11, 2012, she suffered loss of
vision in her left eye, Behcet’s disease, uveitis, and retinal vasculitis, left middle cerebral artery
narrowing, and residual effects of said injuries. Amended Petition at Preamble. However, the
information in the record does not establish entitlement to compensation.
On March 26, 2021, petitioner filed a motion seeking a decision dismissing her claim.
Petitioner’s Motion (“Pet. Mot.”) (ECF No. 144). Petitioner avers that upon careful
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.
consideration of the facts and science supporting the case, the voluminous medical records, the
reports from expert witnesses on both sides, and the Court’s analysis, petitioner has concluded
that she is unlikely to establish that she is entitled to compensation in the Vaccine Program. Id.
at ¶ 1. In these circumstances, to proceed any further would be unreasonable and would waste
the resources of the Court, the Respondent, and the Vaccine Program. Id. at ¶ 2. Petitioner
understands that a decision dismissing her petition will result in a judgment against her. Id. at ¶
3. She has been advised that such a judgment will end all of her rights in the Vaccine Program.
Id. Petitioner understands that she may apply for fees and costs once her case is dismissed and
judgment is entered against her. Id. at ¶ 4. Respondent expressly reserves the right, pursuant to
42 U.S.C. § 300aa-15(e), to question the good faith and reasonable basis of the claim and to
oppose, if appropriate, the application for fees and costs. Id. Petitioner intends, under 42 U.S.C.
§ 300aa-21(a)(2), to accept the judgment.
To receive compensation in the Vaccine Program, petitioner has the burden of proving
either: (1) that she 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 she suffered an injury that was caused-in-fact by a covered vaccine. §§
13(a)(1)(A); 11(c)(1). Here, an examination of the record does not contain any allegation or
persuasive evidence that petitioner suffered a “Table Injury.” Thus, she is limited to alleging
causation-in-fact. The record does not contain persuasive evidence indicating that petitioner’s
injuries caused or in any way related to the vaccine which she received.
Moreover, under the Vaccine Act, compensation may not be awarded based on the
petitioner’s claims alone. Rather, the petitioner must support the claim with either medical
records or the opinion of a competent medical expert. 42 U.S.C. § 13(a)(1). Here, the medical
records are insufficient to establish entitlement. The medical records, which are indeed
voluminous, also reflect that petitioner had a significantly complex medical history prior to
receiving the Tdap vaccination. After respondent advised that he would defend against the
claim, petitioner filed several experts’ reports, to which respondent had similarly qualified
experts respond. Respondent’s experts opined that petitioner had undiagnosed Behcet’s disease
prior to the Tdap vaccination and they raised additional critiques of petitioner’s claim. Based on
these reports and my subsequent review (see Rule 5 Order filed December 3, 2020 (ECF No.
138); Scheduling Order filed February 19, 2021 (ECF No. 143)), petitioner has now requested
voluntary dismissal of her claim.
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2