1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 1338 V

Filed: July 18 , 2016

[Not to be published]

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

JEFF WEGGEN and BETH QUALLS *

on behalf of their minor child S.W., * Special Master Gowen

*

Petitioner s

, * Dismissal; Gardasil ;

v. * A d verse Reaction

*

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

A ndrew D. Downing

, V a n Cott & Talaman te, PLLC, Phoenix, AZ

, for petitioner s

. A nne D. Martin , United States Dep ar t ment of Justice, Washington, DC for respondent.

DECISION 1

On N ovember 6 , 2015

, Jeff Weggen and Beth Qualls ( “ petitioners ” ) filed a p etition on

behalf of t he i r minor child, S .W

., p ursuant to the National Vaccine Injury Compensation

Program

. 2 Petitioners alleged that as a result of receiving Gardasil vacc inations, the last in the

serie s administered May 17, 2012, S.W. suffered a “severe adverse reaction.” P etition at

Preamble. The information in the record, however, does not show entitlement to an award under

the Program.

On J uly 15 , 2016, petitioner s moved for a decision dismissing th e ir petition, stating that

“ [p]etitioners recognize that they will likely be unable to meet their burden of proof as to

scientific and medical causation and establish that S.W. is entitled to compensation in the

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the

undersigned intend s to post this decision on the United States Court of Federal Claims' website, in

accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and

Promotion of Electronic Government Services) . In accordance with Vaccine Rule 18(b), petitioner 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, I agree that the identified material fits within the

requirements of that provision, I will delete such material fr om public access.

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

Vaccine Program. ” Motion for a D ecision Dismissing Petition at ¶ 3 , filed July 15, 2016.

Petitioners state that they understand that a decision by the Special Master will result in a

judgment against them, and that such a judgment will end all of S.W. ’ s rights in the Vaccine

Program. I d. at ¶ 5. Petitioners state that they intend to protect their and S.W. ’ s rights to file a

civil action. Id. at ¶ 6. Respondent does not oppose petitioner ’ s motion.

To receive compensat io n under the Program, petitioner s must prove either ( 1) that S .W

. suffered a “Table Injury”

— i .e., an injury falling within the Vaccine Injury Table

— corresponding

to the vaccination, or ( 2) that S

. W

. suffered an injury that was actually caused by the vaccin ation

. See §§ 13(a)(1)(A) and 11 (c)(1). An examination of the record did not uncover any evidence

that S

. W

. suffered a “Table Injury, ” n or do pet itioners allege that S.W. suffered a “ Table Injury. ”

Further, the record does not contain any persuasive evidence indicating that S

. W .’s alleged

injur ies w e re caused by the Gardasil vaccine s

.

Under the Vaccine Act, petitioner may not be given a Program award based solely on the

petitioner s ’ claims alone. Rather, the petition must be supported by either medical records or by

the opinion of a competent physician. § 13 (a)(1). In this case, because there are insufficient

medical records supporting pe titioner’s claim , a medical opinion must be offered in support.

Petitioner, however, has offered no such opinion

.

Accordingly, it is clear fr om the reco rd in this case that petitioner has failed to

demonstrate either that S

. W

. suffered a “Table Injury” or that the inju ries were “actually caused”

by the Gardasil vaccination s

. Thus, this case is dismissed for insufficient proof. The Clerk

shall e nter judgment accordingly.

IT IS SO ORDERED.

/ Thomas L. Gowen

Thomas L. Gowen

Special Master