# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

Filed: February 14, 2019

* * * * * * * * * * * * *

ELVIRA CRUZ

, * UNPUBLISHED

*

Petitioner, * No. 17

- 11 67 V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Petitioner ’ s Motion for Dismissal

AND HUMAN SERVICES, * Decision; Influenza ( “ Flu ” ); Status

* Asthmaticus; Respiratory Failure;

Respondent. * Renal Failure; Acute Critical Illness

* * * * * * * * * * * * * Myopathy.

Mark T. Sadaka

, Mark T. Sadaka LLC, Englewood, NJ

, for petitioner.

Ryan D. Pyles , United States Department of Justice, Washington, DC for respondent.

D ISMISSAL D ECISION 1

On August 29 , 2017, Elvira Cruz (“petitioner”) filed a petition in the National Vaccine

Injury Compensation Program. 2 Petitioner alleged that on September 9, 2014, she receiv ed a n

influenza ( “ flu ” ) vaccination which either caused

- in

- fact or in the alternati ve, significantly

aggravated her subsequent status asthmaticus, respiratory failure, renal failure, and acute critical

illness myopat hy, with residual injuries and/ or complications lasting for more than six months.

Petition (ECF No. 1) at Preamble, ¶ 9 ; see also Amended Petition filed September 11, 2017

(ECF No. 11) (correcting the spelling of petitioner ’ s name)

. The information in the record,

however, does not show entitlement to an award in the Program.

1 P ursuant to the E

- Government Act of 2002

, see 44 U.S.C. § 3501 note (2012), b ecause this decision contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. This means the

Ruling will be available to anyone with access to the Internet. Before the decision is posted on the court’s

website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the

decision.” Id. If neither party files a motion for redaction wi thin 14 days, the decision will be posted on the

court’s website without any changes. Id.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et

seq

. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa

of the Act.2

On February 13, 2019 , petitioner filed a motion for a decision dismissing h er clai m

. Petitioner’s Motion (ECF No. 40 ). The motion provides that petit ioner understands that a

decision by the special master dismissing her petition will result in a judgment against h er and

that such a judgment will end all of h er rights in the Vaccine Program. Id. at 2. Petitioner

intends to protect h er rights to file a civil action in the future. Therefore, pursuant to Section

21(a)(2), petitioner intends to elect to reject the Vaccine Program judgment and to file a civil

action. Id. at 1

.

Petitioner provides that respondent expressly reserves the right, pursua nt to Section 15(e),

to question the good faith and reasonable basis and to oppose, if appropriate, her application for

attorneys ’ fees and costs. Id. at 1 . Respondent does not otherwise oppose this motion. Id.

To receive compensation in the Vaccine Program, petitioner must prove either: (1) that

she suffered a “Table Injury,” i.e., an injury beginning within a specified period of time

following receipt of a corresponding vaccine listed on the Vaccine Injury Table, or (2) that she

suffered an injury that was c aused

- in

- fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). An

examination of the record does not support a finding that petitioner suffered a “Table injury.”

Further the record does not contain persuasive evidence that petitioner suffered an injur y t hat

w ere either caused

- in

- fact or in the alternative, significa ntly aggravated by the flu vaccine s he

received on September 9, 2014

.

Under the Vaccine Act, the Vaccine Program may not award compensation solely based

on a petitioner’s own claims. Rather, a petitioner must support his claim with either medical

recor ds or the opinion of a competent physician. § 13(a)(1). In this case, the medical records do

not establish causation for either a “Table Injury” or an “off

- Table” injury which was either

caused

- in

- fact or significantly aggravated by the vaccine. Further, with regard to the “off

- Table”

in jury, petitioner has not submitted an expert report in support of h er claim. Petitioner has not

met h er burden of proof. Therefore, h er claim cannot succeed and it must be dismissed. §

11(c)(1)(A).

Thus, petitioner’s motion is GRANTED. This matter is D ISMISSED for insufficient

proof. The Clerk of the Court shall enter judgment accordingl y

. 3

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

3 Entry of judgment is expedited by each party’s filing not ice renouncing the right to seek review. Vaccine Rule

11(a).