Estate of Raul Torres Sr. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 13-943V Filed: May 27, 2014

************************* RAUL TORRES, JR., on behalf of * UNPUBLISHED the estate of RAUL TORRES, SR., *

* Special Master Dorsey Petitioner, *

*

v. * Petitioner’s Oral Motion to Dismiss;

* Insufficient Proof of Causation; SECRETARY OF HEALTH * Vaccine Act Entitlement; Influenza AND HUMAN SERVICES, * (Flu) Vaccine; Chronic

* Inflammatory Demyelinating Respondent. * Polyneuropathy (“CIDP”); Guillain-

* Barré Syndrome (“GBS); Death. ************************* Michael Adly Baseluos, Baseluos Law Firm, San Antonio, TX, for Petitioner.

Ryan Pyles, United States Department of Justice, Washington, DC, for Respondent.

DECISION 1

On November 27, 2013, Raul Torres, Jr., (“petitioner”) filed a petition on behalf of the Estate of Raul Torres, Sr., pursuant to the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine Act”). Petitioner alleged that, as a result of receiving an influenza (“flu”) vaccine on December 1, 2010, Raul Torres, Sr., suffered from chronic inflammatory demyelinating polyneuropathy (“CIDP”), Guillian-Barré syndrome (“GBS”), and death.

During a status conference on May 20, 2014, petitioner’s counsel moved orally for dismissal of the case. Petitioner’s counsel stated that petitioner may re-file this case as a civil suit.

To receive compensation under the Vaccine Act, petitioner must prove either 1) that Raul Torres, Sr. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to his vaccination, or 2) that Mr. Torres, Sr. 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 Mr. Torres, Sr. suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that Mr. Torres, Sr.’s injuries were caused by a vaccination.

Under the Vaccine Act, a petitioner may not be awarded compensation based solely on the petitioner’s claims. 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 has not filed any medical records or any opinion of a competent physician.

Therefore, the only alternative remains to DENY this petition. Thus, this case is dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

/s/ Nora Beth Dorsey Nora Beth Dorsey Special Master