Kaplan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-231V Filed: August 4, 2022

* * * * * * * * * * * * * * ERIC P. KAPLAN, *

* Dismissal Decision; Petitioner, * Influenza (“Flu”) Vaccine;

* Transverse Myelitis (“TM”) v. *

* SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * * Sylvia Chin-Caplan, Esq., Law Office of Sylvia Chin-Caplan, Boston, MA, for petitioner. Kyle Pozza, Esq., U.S. Department of Justice, Washington, DC, for respondent.

DECISION1 Roth, Special Master:

On February 14, 2018, Dr. Eric Kaplan (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq.2 (“Vaccine Act” or “the Program”). Petitioner alleged that he suffered transverse myelitis (“TM”) as a result of the influenza vaccine (“flu”) vaccine he received on October 5, 2015. Petition at 1, ECF No. 1.

Following an onset hearing and based on all the evidence filed and testimony provided, a Ruling on Onset was issued on April 28, 2022 finding that petitioner suffered from progressive left leg symptoms that began prior to his October 5, 2015 flu vaccination . ECF No. 53. 3 Petitioner’s symptoms became more pronounced just prior to his March 28, 2016 appointment with Dr. Moray. Thereafter, Dr. Kaplan’s condition rapidly declined, resulting in drop foot by April 28, 2016, which required an AFO by the end of May of 2016 and eventually a stimulator in September of 2016. Id. Shortly after the Ruling on Onset was issued, on May 16, 2022, petitioner filed a Motion for Dismissal Decision requesting that his case be dismissed. ECF No. 54.

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

Under the Act, petitioner may not be given a Program award based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 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 that supports a finding of entitlement. The information in the record does not show entitlement to an award under the Program.

Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate either that he suffered a “Table Injury” or that his 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. s/ Mindy Michaels Roth Mindy Michaels Roth Special Master