Robert Boyer and Pamela Boyer, Natural Parents and Guardians of Ab, a Minor v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-517V
Filed: January 27, 2014
************************* UNPUBLISHED
ROBERT BOYER and PAMELA * No. 12-517V
BOYER, natural parents and *
guardians of AB, * Special Master Dorsey
a minor, *
* Petitioner’s Motion for Judgment on
Petitioners, * the Record; Insufficient Proof of
* Causation; Vaccine Act Entitlement;
v. * Denial Without a Hearing; Flu-like
* Symptoms; Extreme Fatigue;
* Dizziness; Postural Orthostatic
SECRETARY OF HEALTH * Tachycardia Syndrome (“POTS”);
AND HUMAN SERVICES, * HPV Vaccine; VZV Vaccine; Flu
* Vaccine; MVC4 Vaccine; Tdap
Respondent. * Vaccine; HAV Vaccine; HIV
* Vaccine.
*************************
Thomas P. Gallagher, Somers Point, NJ, for Petitioner.
Jennifer Leigh Reynaud, United States Department of Justice, Washington, DC, for Respondent.
DECISION 1
On August 16, 2012, Robert and Pamela Boyer (“petitioners”), as the parents and natural
guardians of AB, filed a petition pursuant to the National Childhood Vaccine Injury Act of 1986,
42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine Act”). Petitioners alleged that AB suffered from
flu-like symptoms, extreme fatigue, dizziness, and Postural Orthostatic Tachychardia Syndrome
(“POTS”) caused by the human papillomavirus (“HPV”), varicella (“VZV”), flu, MVC4, Tdap,
HAV and/or HIV vaccines she received on September 4th and October 5th, 2009.
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Because this unpublished decision contains a reasoned explanation for the action in this case,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, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 and note (2006)). 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.
On December 11, 2013, petitioners filed a motion for judgment on the existing record. In
their motion, petitioners indicate that their expert, having reviewed the medical records in this
case, does not feel that he can write a report supporting petitioners’ claim. Petitioners’ counsel
states that he spoke with Pamela Boyer on November 23, 2013, regarding the expert’s decision,
and that “Mrs. Boyer understands the difficulty in proving her daughter’s injury was caused by
the vaccines she received.” According to petitioners’ counsel, Mrs. Boyer has agreed to the
filing of the instant motion.
Before ruling on petitioners’ motion for judgment on the record, the undersigned issued
an order informing that parties that, unless they objected within one week, the caption in this
case would be altered to refer to AB by her initials rather than her full name. See Order, dated
January 17, 2014, at 1. As of today, a week has passed, and petitioners have not filed an
objection.
On January 23, 2014, petitioners filed a motion for a decision dismissing their petition.
They again assert that “an investigation of the facts and science supporting their case has
demonstrated … that they will be unable to prove that they are entitled to compensation in the
Vaccine Program.” They state that they “understand that a decision by the Special Master
dismissing their petition will result in judgment against them,” and that “[t]hey have been
advised that such a judgment will end their rights in the Vaccine Program.” They also
understand that they may apply for costs after judgment has entered on a dismissal.
To receive compensation under the Vaccine Act, petitioners must prove either 1) that AB
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of AB’s vaccinations, or 2) that AB 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 AB suffered a “Table Injury.” Further, the record does not contain a
medical expert’s opinion or any other persuasive evidence indicating that AB’s injuries were
caused by a vaccination.
Under the Vaccine Act, petitioner may not be awarded compensation based solely on the
petitioner’s claims. 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.
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/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master