Jafary v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-991V

Filed: August 13, 2021

UNPUBLISHED

MUHAMMAD JAFARY, Special Master Horner

Petitioner, v. Petitioner’s Motion for Decision

Dismissing Petition; Influenza SECRETARY OF HEALTH AND (flu) vaccine; Necrotizing HUMAN SERVICES, myopathy

Respondent.

David J. Carney, Green & Schafle, LLC, Philadelphia, PA, for petitioner. Matthew Murphy, U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1 On August 7, 2020, petitioner filed a claim under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he suffered necrotizing myopathy as a result of his receipt of the influenza vaccination on January 23, 2018. (ECF No. 1.) On February 11, 2021, respondent filed his Rule 4 report, recommending against compensation. (ECF No. 16.) On June 25, 2021, I issued a non-pdf scheduling order directing petitioner to file an expert report in support of his claim.

On August 12, 2021, petitioner filed a Motion for a Decision Dismissing his Petition. (ECF No. 24.) In his motion, petitioner explains that he: engaged a reputable immunology/rheumatology expert to review the medical records and medical literature to analyze the merits of the case and the causal link between the vaccines and [p]etitioner’s necrotizing myopathy. After undertaking the efforts above and in consultation with [p]etitioner, [p]etitioner has made the decision to voluntarily withdraw his [p]etition for [c]ompensation.” (Id. at 3.)

To receive compensation in the Vaccine Program, petitioner must prove either (1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or (2) that he suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy his burden of proving causation in fact, petitioner must show by preponderant evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from ruling for petitioner based solely on his allegations unsubstantiated by medical records or medical opinion.

Petitioner’s medical records do not support his allegations by a preponderance of the evidence and he did not file a medical opinion from an expert in support of his allegations. Accordingly, the undersigned GRANTS petitioner’s Motion for Decision Dismissing Petition and DISMISSES this petition for failure to establish a prima facie case of entitlement to compensation.

CONCLUSION

This case is now DISMISSED. The clerk of the court is directed to enter judgment in accordance with this decision. 2 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master