Dixon v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: March 11, 2021

* * * * * * * * * * * * * * * * * * * ANDREA DIXON, next friend of * UNPUBLISHED J.D., a minor, *

* No. 17-1244v Petitioner, *

v. * Special Master Gowen

* SECRETARY OF HEALTH * Motion for Decision Dismissing AND HUMAN SERVICES, * Claim; Pentacel; Prevnar 13;

* Transverse Myelitis (TM); Acute Respondent. * Flaccid Myelitis (AFM).

* * * * * * * * * * * * * * * * * * * Scott W. Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner.

Lara A. Englund, U.S. Department of Justice, Washington, DC, for respondent.

DECISION1 On September 13, 2017, Andrea Dixon (“petitioner”) as next friend of J.D., a minor, filed a petition in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). On September 4, 2014, J.D. received diphtheria-tetanus-acellular pertussis (“DTaP”), inactivated polio virus (“IPV”), and haemophilus influenzae type B (“Hib”) (administered together as “Pentacel”) and pneumococcal conjugate (“Prevnar 13”) vaccines, which are listed on the Vaccine Injury Table. Id. at ¶ 4. Petitioner alleged that as a result of said vaccines, J.D. developed acute flaccid myelitis (“AFM”). Id. at ¶ 34.3 The information in the record, does not establish entitlement to compensation.

On February 26, 2021, petitioner filed a status report advising that she has agreed to voluntary dismissal. Petitioner’s (“Pet.”) Status Report (ECF No. 75). On March 10, 2021, petitioner filed a motion which confirms that she is seeking a decision dismissing her claim. Pet. Motion (“Mot.”) (ECF No. 76).

To receive compensation in the Vaccine Program, petitioner has the burden of proving either: (1) that she suffered a “Table Injury,” i.e., an injury beginning within a specified period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a “Table injury”) or (2) that she suffered an injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). Here, an examination of the record does not contain any allegation or persuasive evidence that petitioner suffered a “Table Injury.” Thus, she is limited to alleging causation-in-fact. The record does not contain persuasive evidence indicating that J.D.’s injury was caused or in any way related to the vaccine which she received.

Moreover, under the Vaccine Act, the Vaccine Program may not award compensation based on the petitioner’s claims alone. Rather, the petitioner must support the claim with either medical records or the opinion of a competent medical expert. 42 U.S.C. § 13(a)(1). Here, the medical records are insufficient to establish entitlement. After respondent advised that he would defend against the claim, petitioner filed two experts’ reports, see Pet. Exs. 17-18, to which respondent had two similar experts respond, see Resp. Exs. A, C. All four experts accepted that J.D. was correctly diagnosed with acute flaccid myelitis (“AFM”). At a status conference on July 16, 2019, held pursuant to Vaccine Rule 5, I identified additional questions pertaining to the nature of AFM, which bear on petitioner’s burden of establishing causation-in-fact. See Order (ECF No. 51). Petitioner did not file supplemental expert reports. Instead, she averred that J.D.’s correct diagnosis is not AFM, but transverse myelitis (“TM”). However, a review of J.D.’s updated medical records supports that J.D.’s diagnosis is AFM. Pet. Ex. 38 at 1; see also Scheduling Order filed February 26, 2020 (ECF No. 63); Scheduling Order filed December 4, 2020 (ECF No. 74). Petitioner has now requested voluntary dismissal of her claim.

Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient proof. The Clerk of the Court shall enter judgment accordingly.4

IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master