Susan Kippenberger, Parent of Jpk,ii, a Minor v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 04-641V Filed: November 27, 2013 Not to be Published ************************* SUSAN KIPPENBERGER, * parent of JPK,II, * a minor, * * Petitioners, * Autism; Petitioner’s Motion for a * Decision Dismissing the Insufficient v. * Petition; Proof of Causation; Vaccine * Act Entitlement; Denial Without Hearing SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * ************************* DECISION 1

On April 9, 2004, petitioner filed a Petition for Vaccine Compensation in the National Vaccine Injury Compensation Program (“the Program”), 2 alleging that various vaccinations injured JPK, II. The information in the record, however, does not show entitlement to an award under the Program.

On November 18, 2013, petitioner moved for a decision on the merits of the petition, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation.

Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in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 delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B).

Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access.

The Program comprises 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-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act.

To receive compensation under the Program, petitioner must prove either 1) that JPK, II suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of JPK, II’s vaccinations, or 2) that JPK, II suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover any evidence that JPK, II suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that JPK, II’s alleged injury was vaccine-caused.

Under the Act, petitioner may not be given a Program award based solely on the petitioners’ 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, because there are insufficient medical records supporting petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion.

Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate either that JPK, II suffered a “Table Injury” or that JPK, II’s injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

/George L. Hastings, Jr. George L. Hastings, Jr. Special Master