Childree v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ZACHARY CHILDREE and *
MEGAN AKERS on behalf of B.C., *
a minor child, *
* No. 17-848V
Petitioners, * Special Master Christian J. Moran
*
v. *
* Filed: March 25, 2019
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement, dismissal
*
Respondent. *
*********************
Diana L. Stadelnikas, Maglio Christopher and Toale, PA, for petitioners;
Jeffrey T. Sprague, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Zachary Childree and Megan Akers filed a petition on behalf of their child,
B.C., under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa—10
through 34, on June 22, 2017. The petition alleged that various vaccinations that
B.C. received on July 21, 2016, caused B.C. to suffer from seizures. See Petition,
filed June 22, 2017, at 1-2. On January 3, 2019, petitioners moved for a decision
dismissing their petition.
1
The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
I. Procedural History
Petitioners filed their petition on behalf of B.C. on June 22, 2017.
Following an extension of time, petitioners finished submitting B.C.’s medical
records and filed a statement of completion on August 1, 2017.
On November 20, 2017, the Secretary filed his Rule 4 report opposing a
finding of entitlement. As initial matter, the Secretary pointed out that B.C.’s
seizures were afebrile and short in duration, that he did not suffer from status
epilepticus, and that he did not have any signs or symptoms consistent with an
acute encephalopathy. The Secretary stated that none of B.C.’s treating physicians
proposed a connection between the vaccinations and his seizure disorder. The
Secretary also noted that petitioners had not yet proposed a medical theory for how
the vaccinations caused B.C.’s injuries or how a four-day onset is an appropriate
time frame.
At the Rule 5 status conference on December 14, 2017, the parties agreed to
proceed to the expert report phase and petitioners’ expert report deadline was set
for March 20, 2018. The undersigned then issued expert instructions.
Despite numerous extensions of time, petitioners were unable to retain an
expert and never filed their initial expert report. Subsequently, petitioners filed the
instant Motion for a Decision Dismissing the Petition on January 3, 2019. Due to
the government shutdown, respondent’s response deadline was extended to March
5, 2019, but respondent did not file a response.
This matter is now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that petitioner suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
petitioner’s vaccinations, or 2) that petitioner suffered an injury that was actually
caused or significantly aggravated 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
petitioner suffered a “Table Injury.” Further, the record does not contain other
persuasive evidence indicating that petitioner’s injuries are vaccine-caused or
significantly aggravated by a vaccine.
2
Under the Act, a petitioner may not be given a Program award based solely
on petitioner’s claims alone. 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, because the medical records do not sufficiently support petitioners’
claim, a medical opinion must be offered in support. A medical opinion has not
been offered.
In their motion, petitioners stated that they “will be unable to prove that B.C.
is entitled to compensation Vaccine Program” despite consultation with B.C.’s
treating neurologist and pediatric neurologist. A review of the record supports the
conclusion that petitioners have not proposed a medical theory connecting the
vaccinations to B.C. injuries and that B.C.’s treating physicians did not relate the
vaccinations to his injuries.
Accordingly, the undersigned finds that petitioners have not demonstrated
that the vaccinations “actually caused” or “significantly aggravated” B.C.’s
injuries.
Thus, the Motion for Decision is GRANTED and this case is
DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.
Any questions may be directed to my law clerk, Andrew Schick, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3