Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-677
Filed: March 9, 2016
************************* UNPUBLISHED
DONNA SMITH and BRIAN SMITH, *
Parents of MWS, a minor, *
* Special Master Hamilton-Fieldman
Petitioners, *
*
v. * Petitioners’ Motion for Dismissal
* Decision; Diphtheria, Tetanus,
SECRETARY OF HEALTH * Pertussis (“DTap”), Haemophilus
AND HUMAN SERVICES, * Influenzae Type B (“Hib”),
* Inactivated Polio (“IPV”),
Respondent. * Pneumococcal Conjugate (“PCV”),
* Hepatitis A (“Hep A”), Influenza
************************* (“Flu”) Vaccinations; Acute
Encephalopathy; Chronic
Encephalopathy; Seizure Disorder;
Neurological Conditions; Speech
Delay; Developmental Regression,
Autism-like Symptoms.
Robert Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioners
Linda Renzi, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On September 13, 2013, Donna and Brian Smith (“Petitioners”) filed a petition, on behalf
of their minor child MWS, for compensation under the National Childhood Vaccine Injury Act
of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine Act”). In an amended Petition filed on
November 20, 2015, Petitioners alleged that the Diphtheria, Tetanus, Pertussis (“DTap”),
Haemophilus Influenzae Type B (“Hib”), Inactivated Polio (“IPV”), and Pneumococcal
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, codified as amended at 44 U.S.C. §
3501 and note (2012). In accordance with Vaccine Rule 18(b), a party has 14 days to identify
and move to delete medical or other information, that satisfies the criteria in § 300aa-
12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a
proposed redacted decision. If, upon review, the undersigned agrees that the identified material
fits within the requirements of that provision, such material will be deleted from public access.
Conjugate (“PCV”) vaccinations administered to MWS on September 17, 2010, and the Hepatitis
A (“Hep A”) and seasonal influenza (“flu”) vaccinations administered to MWS on December 17,
2010, caused him to suffer from “an acute encephalopathy” either as a Table injury or caused-in-
fact by the vaccines, that resulted in symptoms including a seizure disorder, ataxia, apraxia,
dysarthria, autism-like symptoms, developmental regression and delay, and “other neurological
conditions.” Amended Petition (“Amend. Pet.”) at 1-6. Alternatively, Petitioners’ Amended
Petition alleged that the September 17, 2010 vaccinations caused MWS to develop cerebral
folate deficiency, “an autoimmune injury,” “manifesting as the symptoms of developmental and
behavioral regression.” Id. at 4-5. As an additional alternative theory, Petitioners alleged that
the vaccinations “significantly aggravated [MWS’] preexisting condition, to wit: a metabolic
disorder” or a “mild speech delay” resulting in “a marked developmental regression that
occurred shortly after the vaccines were administered and was caused by them.” Id. at 5. The
undersigned now finds that the information in the record does not show entitlement to an award
under the Program.
On March 9, 2016, Petitioners filed a Motion for a decision dismissing the petition.
According to the Motion, “[a]n investigation of the facts and available science supporting
petitioners’ case has demonstrated to petitioners that they will be unable to prove that they are
entitled to compensation in the Vaccine Injury Compensation Program (“VICP”).” Motion, at 1.
Petitioners further state that they understand that a dismissal decision will result in a judgment
against them, and that such a judgment will end all of their rights in the Vaccine Program.
To receive compensation under the Vaccine Act, Petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of his vaccinations, or 2) that he suffered an injury that was actually caused 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 MWS suffered a “Table Injury.” Further, the record does not contain a
medical expert’s opinion or any other persuasive evidence indicating that his injuries were
caused by vaccinations.
Under the Vaccine Act, a petitioner may not be awarded compensation based on the
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 are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioners, however, have offered no such opinion.
2
Therefore, the only alternative remains to DENY this petition. Thus, this case is
dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
3