Livingston v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-268V
(Not to be published)
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PERCELL LIVINGSTON, Father and *
Natural Guardian of D.L., a minor, *
* Filed: July 11, 2014
Petitioner, *
* Petitioner’s Motion for a Decision;
v. * Dismissing the Petition for
* Insufficient Proof of Causation;
SECRETARY OF HEALTH AND * Vaccine Act Entitlement; Denial
HUMAN SERVICES, * Without Hearing
*
Respondent. *
*
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Clifford J. Shoemaker, Shoemaker and Associates, Vienna, VA, for Petitioner
Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent
DECISION 1
On April 23, 2012, Percell Livingston filed a petition on behalf of his minor child D.L.
for Vaccine Compensation in the National Vaccine Injury Compensation Program 2 alleging that
1
Because this decision contains a reasoned explanation for my action in this case, I will post
this decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B),
however, the parties may object to the posted decision’s inclusion of certain kinds of confidential
information. To do so, Vaccine Rule 18(b) permits each party 14 days within which to request
redaction “of any information furnished by that party: (1) that is a trade secret or commercial or
financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the public. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C.A. ' 300aa-10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa.
the RotaTeq vaccine D.L. received on March 10, 2011 caused D.L. to suffer Kawasaki’s
Disease. 3
After gathering all of his relevant medical records, and after receiving Respondent’s Rule
4(c) report, Petitioner has now filed an unopposed motion on July 10, 2014 seeking a decision
dismissing his petition, on the grounds that “an investigation of the facts and science supporting
[his claim] has demonstrated to the Petitioner that he will be unable to prove that he is entitled to
compensation in the Vaccine Program.”
To receive compensation under the Program, Mr. Livingston must prove either 1) that
D.L. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of D.L.’s vaccinations, or 2) that D.L. suffered an injury that was actually
caused by a vaccine. See §§13(a)(1)(A) and 11(c)(1). An examination of the record, however, did
not uncover any evidence that D.L. suffered a “Table Injury.” Further, the record does not
contain a medical expert’s opinion or any other persuasive evidence indicating that D.L.’s
alleged injury was vaccine-caused.
Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s naked assertions. Rather, the petition must be supported by either medical records or
by the opinion of a competent expert. §13(a)(1). In this case, there is insufficient evidence in the
record for Mr. Livingston to meet his burden of proof. Petitioner’s claim therefore cannot
succeed and must be dismissed. §11(c)(1)(A).
This case is hereby dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
This information is derived from the April 15, 2013 Amended Petition filed after Petitioner
retained counsel. Petitioner’s original Petition consisted of some of D.L.’s medical records and
information on Kawasaki’s disease but did not state a specific claim upon which relief could be
granted. The special master previously assigned to this case allowed the matter to proceed
forward on the grounds that these errors were correctible.