VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01605
Package ID: USCOURTS-cofc-1_23-vv-01605
Petitioner: Evelyn Haney
Filed: 2023-09-18
Decided: 2024-06-04
Vaccine: Pneumovax 23
Vaccination date: 2020-09-18
Condition: shoulder injury
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Evelyn Haney filed a petition alleging she suffered a shoulder injury from a Pneumovax 23 vaccine received on September 18, 2020. The court noted that only pneumococcal conjugate vaccines, not polysaccharide vaccines like Pneumovax 23, are covered by the National Vaccine Injury Compensation Program. Ms. Haney's attorney mistakenly identified her injury as a 'Table Injury' compensable under the program. The court issued an Order to Show Cause because the vaccine received was not on the Vaccine Injury Table. Ms. Haney responded, acknowledging the error and stating she was alleging a non-Table injury. However, the court clarified that a claim based on a vaccine not listed on the Vaccine Injury Table cannot receive compensation, regardless of how the injury is pleaded. Since Ms. Haney received a pneumococcal polysaccharide vaccine, her claim was not covered by the Vaccine Program. Therefore, the case was dismissed for lack of jurisdiction.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01605-0
Date issued/filed: 2024-06-04
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 5/10/2024) regarding 13 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (abs) Service on parties made.
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Case 1:23-vv-01605-UNJ Document 14 Filed 06/04/24 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1605V
UNPUBLISHED
EVELYN HANEY,
Chief Special Master Corcoran
Petitioner,
v. Filed: May 10, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Celia F. Hastings, Milberg Coleman Bryson Phillips Grossman, Knoxville, TN, for
Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 18, 2023, Evelyn Haney filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through 34
(the “Vaccine Act”).2 Petitioner alleges that she suffered a shoulder injury due to a
Pneumovax 23 (pneumococcal polysaccharide) vaccination she received on September
18, 2020. ECF No. 1 at 1; exhibit 2 (vaccination receipt).
On September 18, 2023, I issued an Order to Show Cause for why Petitioner’s
claim should not be dismissed for lack of jurisdiction over the vaccine in question. ECF
No. 5. The order explained that to receive compensation under the Vaccine Act,
petitioners must show that they received a vaccine set forth in the Vaccine Injury Table
(the “Table”). See § 11(c)(1)(A); 42 C.F.R. § 100.3. “There are two types of
pneumococcal vaccines . . . pneumococcal conjugate and polysaccharide vaccine[s].
The polysaccharide vaccine is distributed under the brand name Pneumovax.” Bundy v.
Sec’y of Health & Human Services, No. 12-769V, 2014 WL 348852, at *1 (Fed. Cl.
Spec. Mstr. Jan. 8, 2014). Only pneumococcal conjugate vaccines, routinely
administered to children, are covered by the Vaccine Program. Id.; see Morrison v.
Sec’y of Health & Human Services, No. 04-1683V, 2005 WL 2008245, at *1 (Fed. Cl.
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. 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 (2012).

Case 1:23-vv-01605-UNJ Document 14 Filed 06/04/24 Page 2 of 2
Spec. Mstr. July 26, 2005) (describing how and when pneumococcal conjugate
vaccines were added to the Vaccine Table). Thus, pneumococcal polysaccharide
vaccines are not included on the Table and are not compensable in the Vaccine
Program.
On November 13, 2023, Petitioner filed a response to the Order to Show Cause.
ECF No. 12. Petitioner stated that her “attorney mistakenly identified Petitioner’s
Pneumovax 23 vaccine as causing a ‘Table Injury’ compensable under the vaccine
injury program. Petitioner is actually alleging a non-Table injury caused in fact by
administration of the Pneumovax 23 vaccine.” Id. Petitioner attached a proposed
amended petition that no longer identified her shoulder injury as a “Table Injury.”
Petitioner’s response to the Order to Show Cause reveals some confusion about
the jurisdictional defect identified in the Order. To clarify, a vaccine claim based on a
vaccine not listed in the Vaccine Injury Table, such as the pneumococcal
polysaccharide vaccine in this case, cannot receive compensation in the Vaccine
Program regardless of how the injury was pleaded, as an on-Table or off-Table injury.3
To remedy her petition and avoid dismissal, Petitioner would have had to establish that
she in fact received a vaccine listed on the Vaccine Injury Table, 42 C.F.R. § 100.3.
However, because Petitioner received a pneumococcal polysaccharide vaccine,
this claim is not covered by the Vaccine Program and she cannot receive compensation
based on this vaccine.
Petitioner has failed to establish that she received a vaccine covered by the
Vaccine Program. Accordingly, this case is DISMISSED. The clerk shall enter
judgment accordingly.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Whether Petitioner suffered an injury listed on the Vaccine Injury Table is not a jurisdictional issue that
would warrant an Order to Show Cause. If Petitioner received a vaccine listed on the Table, Petitioner
could allege an injury listed on the Table (an “on-Table” injury), which would entitle Petitioner to the
presumption of causation, or allege an injury not listed on the Table (an “off-Table” injury) which would
require Petitioner to present evidence of causation.
4 If Petitioner wishes to bring a civil action, she must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
2