VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01506
Package ID: USCOURTS-cofc-1_17-vv-01506
Petitioner: Melba L. Callaway
Filed: 2017-11-26
Decided: 2018-12-27
Vaccine: influenza
Vaccination date: 2015-10-16
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Melba L. Callaway filed a petition on November 26, 2017, alleging that she received an influenza vaccine on October 16, 2015, and subsequently suffered a shoulder injury related to vaccine administration (SIRVA) with lasting complications. After investigating the facts and science, Ms. Callaway concluded that she would be unable to prove her entitlement to compensation under the National Vaccine Injury Compensation Program. She filed a motion to dismiss her claim, understanding that this would result in a judgment against her and end her rights in the program, but intending to preserve her right to file a civil action. The respondent did not oppose the motion. The Special Master noted that to receive compensation, a petitioner must prove either a Table Injury or an injury caused-in-fact by the vaccine. The record did not support a finding of a Table Injury, nor did it contain persuasive evidence that the flu vaccine caused her injury. The Special Master also noted that a petitioner must support their claim with medical records or a physician's opinion, and that Ms. Callaway had not submitted an expert report. Because Ms. Callaway had not met her burden of proof, her claim could not succeed and was dismissed for insufficient proof. The Clerk of the Court was ordered to enter judgment accordingly.

Theory of causation field:
unclear

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_17-vv-01506-0
Date issued/filed: 2018-12-27
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 11/26/18) regarding 37 DECISION of Special Master. Signed by Special Master Thomas L. Gowen. (kb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-01506-UNJ Document 38 Filed 12/27/18 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 26, 2018
* * * * * * * * * * * * *
MELBA L. CALLAWAY, * UNPUBLISHED
*
Petitioner, * No. 17-1506V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Petitioner’s Motion for Dismissal
AND HUMAN SERVICES, * Decision; Influenza (“Flu”) Vaccine;
* Shoulder Injury Related to Vaccine
Respondent. * Administration (“SIRVA”).
* * * * * * * * * * * * *
Jeffrey E. Golvash, Brennan, Robbins & Daley, P.C., Pittsburgh, PA, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC for respondent.
DECISION ON ENTITLEMENT1
On October 13, 2017, Melba L. Callaway (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petitioner alleged that on October 16, 2015, she
received an influenza (“flu”) vaccine in her left shoulder. Petitioner further alleged that as a
result of that vaccine, she suffered a shoulder injury related to vaccine administration
(“SIRVA”), with residual injuries and/ or complications lasting for more than six months.
On November 21, 2018, petitioner filed a motion for a decision dismissing her claim.
Petitioner’s Motion (ECF No. 36). The motion provides that an investigation of the facts and
science supporting the petition has demonstrated to petitioner that she will be unable to prove
that she is entitled to compensation in the Vaccine Program. Id. at ¶ 1. The motion further
provides that petitioner understands that a decision by the special master dismissing her petition
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend 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. Before the decision
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 decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.

Case 1:17-vv-01506-UNJ Document 38 Filed 12/27/18 Page 2 of 2
will result in a judgment against her, and that such a judgment will end all of her rights in the
Vaccine Program. Id. at ¶ 2. Petitioner intends to protect her rights to file a civil action in the
future. Therefore, pursuant to Section 21(a)(2), petitioner intends to elect to reject the Vaccine
Program judgment and to file a civil action. Id. at 5.
On November 26, 2018, respondent’s counsel provided in an email to the undersigned’s
law clerk that respondent does not oppose the instant motion. Thus, it is now ripe for review.
To receive compensation in the Vaccine Program, petitioner must prove 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, or (2) that she
suffered an injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). An
examination of the record does not support a finding that petitioner suffered a “Table injury.”
Further the record does not contain persuasive evidence that petitioner suffered an injury that
was caused-in-fact by the flu vaccine she received on October 16, 2015.
Under the Vaccine Act, the Vaccine Program may not award compensation solely based
on a petitioner’s own claims. Rather, a petitioner must support his claim with either medical
records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records do
not establish causation for either a “Table Injury” or an “off-Table” injury which was caused-in-
fact by the vaccine. Further, with regard to the “off-Table” injury, petitioner has not submitted
an expert report in support of her claim. Petitioner has not met her burden of proof. Therefore,
her claim cannot succeed and it must be dismissed. § 11(c)(1)(A).
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
2