VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_15-vv-00433
Package ID: USCOURTS-cofc-1_15-vv-00433
Petitioner: Chris Juday
Filed: 2015-06-11
Decided: 2015-07-02
Vaccine: Zostavax
Vaccination date: 2014-03-02
Condition: various injuries
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Chris Juday filed a petition for compensation under the National Vaccine Injury Compensation Program on April 29, 2015, alleging he sustained various injuries as a result of receiving the Zostavax vaccine on March 2, 2014. The respondent was the Secretary of Health and Human Services. On May 7, 2015, Chief Special Master Denise Kathryn Vowell issued an Order to Show Cause, informing the petitioner that the Zostavax vaccine is not covered by the Program. The order gave Mr. Juday 30 days, until June 8, 2015, to amend his petition to allege injury from a covered vaccine or otherwise show cause why the petition should not be dismissed. The order also informed him that non-compliance would be interpreted as a failure to prosecute or an inability to provide necessary support for the claim, leading to dismissal. On May 11, 2015, Mr. Juday filed supporting evidence, including his birth certificate, proof of Zostavax vaccination, various medical records, and an affidavit. However, he did not file an amended petition or provide further justification. The Special Master noted that to be entitled to compensation, a petitioner must demonstrate receipt of a vaccine listed on the Vaccine Injury Table, and that Zostavax is not on the Table. The Special Master cited previous cases where petitions for injury from the shingles vaccine were dismissed. As Mr. Juday failed to demonstrate that he received a vaccine covered by the Program and did not otherwise explain why his petition should not be dismissed, the petition was dismissed for insufficient proof and failure to prosecute. Judgment was entered accordingly on July 2, 2015. Samuel R. Robinson represented the petitioner, and Sarah C. Duncan represented the respondent. The decision was issued by Chief Special Master Denise K. Vowell.

Theory of causation field:
Petitioner Chris Juday, age 50, received the Zostavax vaccine on March 2, 2014, and alleged various injuries. The Zostavax vaccine is not listed on the Vaccine Injury Table and is administered to adults to prevent shingles, unlike the varicella vaccine routinely administered to children. The Special Master issued an Order to Show Cause, giving the petitioner 30 days to amend the petition to allege injury from a Program-covered vaccine or show cause for dismissal. Petitioner filed some supporting evidence but did not amend the petition or provide further justification. The petition was dismissed for insufficient proof and failure to prosecute, as the petitioner failed to demonstrate receipt of a Program-covered vaccine. No specific medical theory of causation was presented or evaluated, as the case was dismissed on preliminary grounds. The decision was issued by Chief Special Master Denise K. Vowell on July 2, 2015. Petitioner's counsel was Samuel R. Robinson, and respondent's counsel was Sarah C. Duncan.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_15-vv-00433-0
Date issued/filed: 2015-07-02
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 06/11/2015) regarding 9 DECISION of Special Master (Signed by Chief Special Master Denise Kathryn Vowell.)(mpj) Copy to parties.
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Case 1:15-vv-00433-UNJ Document 10 Filed 07/02/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-0433V
Filed: June 11, 2015
Unpublished
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CHRIS JUDAY, *
*
Petitioner, * Dismissal; Zostavax; Shingles Vaccine;
* Vaccine Not Covered by Program;
v. * Insufficient Proof; Failure to Prosecute;
* Failure to Follow Court Orders; Special
* Processing Unit (“SPU”)
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Samuel R. Robinson, Church, Church, Hittle & Antrim, Noblesville, IN, for petitioner.
Sarah C. Duncan, U.S. Department of Justice, Washington, DC, for respondent.
1
DECISION
Vowell, Chief Special Master:
On April 29, 2015, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 [the “Vaccine
Act” or “Program”]. The petition alleges that petitioner sustained various injuries as a
result of his receipt of the Zostavax vaccine on March 2, 2014.
On May 7, 2015, I issued an Order to Show Cause informing petitioner that the
Zostavax (shingles) vaccine is not covered under the Program. The order afforded
petitioner 30 days, until June 8, 2015, to amend the petition or otherwise show cause
why the petition should not be dismissed. It also provided petitioner with information on
how to voluntarily exit the Vaccine Program, if he desired. The order concluded by
1 Because this unpublished decision contains a reasoned explanation for the 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. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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 (2006).

Case 1:15-vv-00433-UNJ Document 10 Filed 07/02/15 Page 2 of 2
informing petitioner that non-compliance would be interpreted as either a failure to
prosecute the claim or as an inability to provide necessary support for the claim. The
petition would be dismissed in either event.
On May 11, 2015, petitioner filed evidence supporting his Zostavax claim, to
include a copy of his birth certificate, proof of Zostavax vaccination, various medical
records, and an affidavit. Petitioner, however, did not thereafter file an amended
petition showing receipt of a Program-covered vaccine or any other statement,
argument, or evidence showing why his initial petition should not be dismissed.
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. Such vaccines are designated in the Table. See 42 C.F.R.
§100.3 (2011). Zostavax does not appear in the Table and is therefore not covered by
the Program. Unlike the varicella vaccine routinely administered to children, Zostavax is
for immunization against varicella zoster (shingles) and is only administered to adults.3
Previous petitions seeking compensation for injury resulting from the shingles
vaccine have been dismissed. See, e.g., Scanlon v. Sec’y of HHS, 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 HHS, No. 10-110V, 2010 WL 1753471 (Fed. Cl. Spec. Mstr. Apr. 6,
2010); Doe/44 v. Sec’y of HHS, No. [redacted]V, 2009 WL 3124758 (Fed. Cl. Spec.
Mstr. Sept. 25, 2009); Doe/47 v. Sec’y of HHS, No. [redacted]V, 2009 WL 3416368
(Fed. Cl. Spec. Mstr. Sept. 10, 2009).
It is petitioner’s duty to prosecute his claim and comply with court orders. Failure
to execute this duty risks dismissal of the petition. Tsekouras v. Sec’y, HHS, 26 Cl. Ct.
439 (1992), aff’d per curiam, 991 F.2d 810 (Fed. Cir. 1993); Sapharas v. Sec’y, HHS, 35
Fed. Cl. 503 (1996); Vaccine Rule 21(b). The show cause order clearly informed
petitioner that dismissal would result if he did not file an amended petition alleging injury
from a Program-covered vaccine or otherwise explain why his petition should not be
dismissed. In this case, petitioner neither filed an amended petition nor explained why
his petition should not be dismissed.
Petitioner has failed to demonstrate that he received a vaccine covered under the
Vaccine Program. This case is dismissed for insufficient proof and for failure to
prosecute. The clerk shall enter judgment accordingly.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3 See Zostavax official website at www.zostavax.com (“Zostavax is a vaccine used for adults 50 years of
age or older to prevent Shingles (also known as zoster).”).
2