# 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* * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED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

Petitioner s

, * 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”). Petit ioner s 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 4 th and October 5 th

, 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1 Because this unpublished decision contains a reasoned explanation for the action in this case,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 Federa l 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 tha t 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 t hat, unless they objected within one week, the caption in this

cas e 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

obje ction.

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 the ir rights in the Vaccine Program.” They also

understand that they may apply for costs after judgment has entered on a dismissal.

To receive compensation und er the Vaccine Act , petit ioners 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 ex amination 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 th e Vaccine Act, petitioner m ay 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 m edical records

are insufficient to establish entitlement to compensation , a medical opinion must be offered in

support. Petitioner s, however, have offered no such opinion.

Therefore, the only alternative remains to DENY this petition

. Thus, this case is

dism issed for insufficient proof. In the absence of a motion for review, t he Clerk shall

enter judgment accordingly.IT IS SO ORDERED.

/s/ Nora Beth Dorsey

Nora Beth Dorsey

Special Master