# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1149 V

(Not to be P ublished)

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

ILYA BEN

, *

* Special Master Oler

Petitioner, * Filed: April 12 , 2019

v. *

* Petitioner’s Motion for a Decision ;

SECRETARY OF HEALTH * Dismissal of Petition; Vaccine

AND HUMAN SERVICES, * Act; Denial Without Hearing.

*

Respondent. *

*

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

Martin Jeffrey Rubenstein

, Martin Rubenstein

, Staten Island, NY , for Petitioner.

Lisa Ann Watts

, U.S. Dep’t of Justice, Washington, D

. C

. for Respondent.

DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1

On August 24, 2017, Ilya Ben (“Petitioner”) f iled a petition for compensation under the

National Vaccine Injury Compensation Program

, 2 alleging that he developed polymyalgia

rheumatica ( “ PMR ” ) as a result of the Fluzone influenza (“flu”) vaccination that he received on

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted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 the ruling 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 days

within which to request redaction “of any information furnished by that party: (1) that is a trade secret or

commercial o r 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

R ule 18(b). Otherwise, the Decision in its present form will be available. 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 (2012) (“Vaccine

Act” or “the Act”) . Indi vidual section references hereafter will be to § 300aa of the Act (but will omit that

statutory prefix).2

October 20, 2014

. 3 Petition (“Pet.”) at 1, ECF No. 1

. In his pe tition, Petitioner claimed the onset

of his symptoms as November 29, 2014. Pet. at 3.

Petitioner filed numerous medical records on August 29, 2017. ECF No. 6. H e filed his

statement of completion on October 25, 2017. ECF No. 8

. On March 29, 2018, Respondent

requested that Petitioner file the outstanding records highlighted in his status report. ECF No. 11.

Petitioner filed the requested records, and, o n July 16, 2018, Petitioner represented that all

additio nal records had been filed. ECF Nos. 13, 16, 17, 19, 22, 23.

On Sep tember 12, 2018 , Respondent file d a Rule 4(c) Report. ECF No. 24

. Respondent

stated that Petitioner had not satisfied his burden of proof, specifically noting that Petitioner had

not provided medical records or a medical expert report confirming his diagnosis of PMR. Id . at

6. Respondent further argued that Petitioner had not established that his alleged PMR did not

predate the vaccination, since Petitioner experience d several symptoms prior to his October 20,

2014 vaccination. Id

. Respondent concluded that “ [P]etitioner has failed to provide preponderant

evidence in support of the petition for compensati on and his claim should be dismissed. Id . at 7.

F i nally , Respondent filed literature pertaining to PMR alongside his Rule 4 (c) Report. Ex. A, ECF

No. 24.

On October 17, 2018, Petitioner requested an opportunity to submit an expert report in

support of his petition. ECF No. 25. After a single extension of time, Petitioner submitted a status

report on February 21, 2019 , represe nting that he no longer intends to file an expert report. ECF

No. 27 . On March 25, 2019, Petitioner represented that he intends to request a dismissal decision.

ECF No. 28.

On March 25, 2019, Petitioner filed a Stipulation of Dismissal without prejudice. ECF No.

29. My chambers contacted the parties by email on March 26, 2019, to confirm that Petitioner

intends for judgment to not be entered in this case. In a follow

- up telephone conversation with

Petit ioner ’ s counsel on March 29, 2019 , counsel informed my chambers that Petitioner prefers that

an involuntary dismissal decisio n be issued, thereby entering judgment against Petitioner

.

To receive compensation under the Vaccine Program, a petitio ner must prove either (1)

that he suffered a “Table Injury”

– i.e., an injury falling within the Vaccine Injury Ta b le

–

corresponding to one of his vaccinations, or (2) that he suffered an injury that wa s actually caused

by a vaccine. See Se ctions 13(a)(1)(A) and 11(c)(1)

. Moreover, u nder the Vaccine Ac t, a petitioner

may not receive a Vaccine P rogra m award based solely on his claims alone. Rather, the petition

must be supported by either medical records or by the opinion of a competent medical expert

. Section 13(a)(1). In this case, however, there is insufficient evidence in the record for Petitioner

3 This case was initially assigned to Special Master Roth (ECF No. 4), before being reassigned to my doc ket

on June 8, 2018 (ECF No. 20)

.3

to meet his burden of proof. Petitioner ’ s claim

, therefore

, cannot succeed and in accordance with

his motion, must be dismissed. Section 11(c)(1)(A).

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

accordingly.

IT IS SO ORDERED.

/ s/ Katherine E. Oler

Katherine E. Oler

Special Master