Franco v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION

AUGUST 22, 2019

OSM U.S. COURT OF FEDERAL CLAIMS 3Jn tbe Wniteb ~tates <!Court of jfeberal <!Claims

OFFICE OF SPECIAL MASTERS Filed: July 5, 2019

* * * * *

* * * * * * * * * * KEITH FRANCO, * No. 19-684V

* Petitioner, * Special Master Sanders

* V. *

* SECRETARY OF HEALTH * Dismissal; Insufficient Proof; Shingles AND HUMAN SERVICES, .* Vaccine; Lower Extremity Wealmess;

* Ascending Paralysis 'Respondent. *

* * * * * * * * * * * * * * * Keith Franco, Pro Se, Atlanta, GA. Jay Mason All, United States Department of Justice, Washington, D.C., for Respondent.

DECISION 1

On May 8, 2019, Keith Franco ("Petitioner") filed a petition pursuant to the National Vaccine Injury Compensation Program ("Vaccine Program"). 2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged that he suffered from lower extremity weakness and ascending paralysis as a result of the shingles vaccine he received on November 12, 2018. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.

On July 2, 2019, Petitioner submitted a motion to voluntarily dismiss his petition. ECF No. 9. In his motion, Petitioner stated that he "voluntarily dismiss[es] all claims [he] ha[s] filed in this action." Id

To receive compensation under the Program, Petitioner must prove either (I) that he suffered a "Table Injury"-i.e., an injury falling within the Vaccine Injury Table-corresponding to the vaccination, or (2) that he suffered an injury that was actually caused by a vaccine. See §§ 13(a)(l)(A), 1 l(c)(l). An examination of the record did not uncover any evidence that Petitioner suffered a "Table Injury." Further, the record does not contain persuasive evidence that Petitioner's alleged injuries were caused by the shingles vaccine.

Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(l). In this case, the medical records are insufficient to prove Petitioner's claim, and Petitioner has not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk of Court shall enter judgment in accordance herewith.

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~1Acru.-, ~~ IT IS SO ORDERED.

Herbrina D. Sanders Special Master