VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01755
Package ID: USCOURTS-cofc-1_19-vv-01755
Petitioner: Marlene Boger
Filed: 2019-11-13
Decided: 2022-04-05
Vaccine: influenza
Vaccination date: 2016-11-17
Condition: chronic inflammatory demyelinating polyneuropathy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Marlene Boger alleged that the influenza vaccine she received on November 17, 2016, and the Prevnar 13 vaccine she received on December 1, 2016, caused her to develop chronic inflammatory demyelinating polyneuropathy (CIDP). Ms. Boger filed her petition on November 13, 2019. Her counsel later indicated that Ms. Boger died on August 31, 2021. The Secretary of Health and Human Services contested entitlement. Subsequently, Ms. Boger's counsel moved to dismiss the case, stating that her next of kin decided not to pursue the claim. The court noted that to receive compensation, a petitioner must prove either a Table Injury or that the vaccine caused the injury, supported by medical records or a physician's opinion. In this instance, Ms. Boger had not presented preponderant proof that the vaccines caused her alleged CIDP. Therefore, the court granted the motion to dismiss the case with prejudice for insufficient proof. The case was dismissed on April 5, 2022.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01755-0
Date issued/filed: 2022-04-05
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 3/11/2022) regarding 61 DECISION of Special Master Signed by Special Master Christian J. Moran. (jmw) Service on parties made.
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Case 1:19-vv-01755-UNJ Document 69 Filed 04/05/22 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
MARLENE BOGER, *
* No. 19-1755V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: March 11, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for
petitioner;
Martin C. Galvin, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Marlene Boger alleged that the influenza (“flu”) vaccine she received on
November 17, 2016, and the Prevnar 13 (“pneumococcal”) vaccine she received on
December 1, 2016 caused her to develop chronic inflammatory demyelinating
polyneuropathy (“CIDP”). Pet., filed Nov. 13, 2019, at Preamble; ¶¶ 2-6. On
February 28, 2022, Ms. Boger moved for a decision dismissing her petition.
I. Procedural History
Marlene Boger (“petitioner”) filed a petition on November 13, 2019. After
petitioner filed her initial medical records, petitioner’s counsel filed a status report
on September 15, 2021 indicating that Ms. Boger died on August 31, 2021. The
1 The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). Pursuant to Vaccine Rule 18(b), the parties have 14 days to
file a motion proposing redaction of medical information or other information described in 42
U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the
document posted on the website.

Case 1:19-vv-01755-UNJ Document 69 Filed 04/05/22 Page 2 of 3
Secretary filed his Rule 4(c) report on November 26, 2021, contesting entitlement.
A status conference was then held on December 13, 2021, during which potentially
missing records were identified. Petitioner was ordered to file a status report
providing an update on petitioner substitution and record gathering.
Subsequently, on February 28, 2022, petitioner moved to dismiss her case.
Counsel reports that petitioner’s next of kin has decided not to move forward with
becoming a representative for Ms. Boger’s estate and has requested this case be
dismissed. This matter is now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner must prove either 1) that the
vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine
Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A)
and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award
based solely on the petitioner’s claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent physician.
§ 300aa-13(a)(1).
In this case, petitioner filed medical records in support of her claim, but
nonetheless, wishes to have her claim dismissed and judgment entered against her.
Though petitioner filed this motion pursuant to 42 U.S.C. § 300aa—21(a)
(regarding voluntary dismissal), the undersigned will construe this as a motion
filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary dismissal),
given petitioner’s clear intent that a judgment issue in this case, protecting her right
to file a civil action in the future. See Pet’rs’ Mot., filed Feb. 28, 2022, ¶ 9.
To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, petitioner has not presented preponderant proof in the
form of either a medical record or a medical opinion that either the flu vaccine or
the Prevnar 13 vaccine caused her alleged CIDP.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).
IT IS SO ORDERED.
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Case 1:19-vv-01755-UNJ Document 69 Filed 04/05/22 Page 3 of 3
s/Christian J. Moran
Christian J. Moran
Special Master
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