# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1806 (not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * * Special Master Corcoran MARK OLSAVICKY, JR., and * AUTUMN OLSAVICKY, * as Administrators of the estate of * J.O., an infant, deceased

, *

*
Petitioner s , * Filed: June 4 , 2019

*

v. *

* Motio n for Decision Dismissing
SECRETARY OF HEALTH * Petition. AND HUMAN SERVICES, *

* Respondent. *

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

Rudolph L. Massa , Massa Law Group, PC, Pittsburgh, PA, for Petitioners.

Voris E. Johnson , U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION DISMISSING CASE 1

On November 16, 2017

, Mark Olsavicky, Jr.

, and Autumn Olsavicky filed a petition as administrators of the estate of their deceased infant son, J.O., seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”). 2 Petitioners alleged that

the vaccines J.O. received on November 18, 2015

— which included Dip h theria

- Tetanus

- acellular

Pertussis , Hepatitis B, haemophilus influenza B conjugate , Pneum ococcal PCV 13, polio, and

1 Although this D ecision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa

12(d)(4)(B), however, the parties may object to the D ecision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen day s 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 wh ich would constitute a clearly unwarranted invasion of privacy.” Vaccine Ru le 18(b). Otherwise, the whole D ecision will be available to the public
in its current form

. Id

.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (20 12 ) [hereinafter “Vaccine Act” or “the Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix )

.2

Rota T eq

— caused his death two days after vaccination , on November 20, 2015. Pet. at 1. Petitioners present ed two theories of causation: that J.O. experienced an acute encephalopathy which led to his death; or , in the alternative, that he experienced hypoxia due to an acute

vaccination

- ind uced cytokine cascade, which was a substantial factor in bringing about his death.

Id. at 11

– 12.

During a status conference on August 13, 2018, I expressed doubts about the claim’s viability, noting that several past Vaccine Program decisions had addr essed similar claims involving Sudden Infant Death Syndrome ( “ SIDS ” ) and uniformly found in favor of the Respondent. I there fore directed Petitioners to differentiate their claim from these past SIDS decisions. Order at 1, dated Aug. 13, 2018 (ECF No. 16). The parties filed briefs in support of their respective positions in November 2018. See Br. in Support of the Basis of Pet’rs’ Clai m, filed Nov. 5, 2018 (ECF No. 19) ( “ Pet. Br. ” ) ; Resp’t’s Resp. to Br. in Support of the Basis of Pet’rs’ Claim,

filed Nov. 29, 2018 (ECF No. 20)

. In their brief, Petitioners proposed a different theory of causation, alleging that J.O. experienced a vaccine

- induced enlargement of the thymus, which obstructed his windpipe and caused his death. Pet. Br. at 8.

Following a status conference on April 1, 2019, I expressed concerns about th is novel

theor y of causation put forth by the Petitioners, as my own preliminary research (which, I not ed,

does not co nstitute evidence in this case) revealed that it likely had been discredited many decades

ago. See Order at 2, dated Apr. 1, 2019 (ECF No. 21). Accordingly, I directed Petitioners to file a status report by the end of that month indicating wheth er they wished to offer an expert report in support of their theory of causation despite my concerns about its viability

. Id. Unable to secure
expert support , Petitioners instead filed a Motion seeking dismissal of their claim on May 31, 2019. See generally Pet’r’s Mot. for Decision Dismissing Pet. (ECF No. 2 4 )

.
To receive compensation under the Vaccine Act, a petitioner must prove either (1) that he suffered a Table injury, or (2) that he suffered an injury that was actually caused by a vaccine. See

Secti ons 11(c)(1), 13(a)(1)(A). However, J.O. did not suffer a Table injury , and the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that J.O. ’ s death could have been caused by any of the vaccines he received on November 18, 2015

.

J.O. ’ s premature passing was certainly a devastating tragedy . However, there is insufficient

evidence for Petitioner s to meet t he i r burden of proof. In keeping with Section 11(c)(1)(A), t he i r claim therefore ca nnot succeed and must be dismissed.

Accordingly, I hereby DISMISS Petitioners’ case. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in

accordance with the terms of this decision. 3

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices

renoun cing their right to seek review.3

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran Special Master