# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 1

- 7 28 V

March 29 , 201 3

Not for Publication

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

DARRELL LINVILLE

, *

*

Petitioner, *

*

v. * N o expert opinion; motion

* for ruling on the record

*

SECRETARY OF HEALTH *

OF HEALTH AND HUMAN SERVICES, AND HUMA N SERVICES, *

*

Respondent. *

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

Isaiah R. Kalinowski

, Sarasota, FL , for petitioner.

Jennifer L. Reynaud , Washington, DC, for respondent.

MILL MAN, Special Master

DEC ISION 1

1 Because this unpublished decision contains a reasoned explanation for the special

master’s action in this case, the special master intends to post this unpublished decision on the

United States Court of Federal Claims’ website, in accordance with the E

- Go vernment Act of

2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that

all decisions of the special masters will be made available to the public unless they contain trade

secrets or commercial or financial informat ion that is privileged and confidential, or medical or

similar information whose disclosure would constitute a clearly unwarranted invasion of privacy.

When such a decision is filed, petitioner has 14 days to identify and move to redact such

information p rior to the document’s disclosure. If the special master, upon review, agrees that

the identified material fits within the banned categories listed above, the special master shall

redact such material from public access.2

On November 3, 2011

, petitioner filed a petition for compensation under the National

Childhood Vaccine Injury Act of 1986

, 42 U.S.C. § 300aa

– 10

- 34 (2006), alleging that influenza

vaccine administered on October 12, 2009 caused him Guillain

- Barré syndrome (GBS)

.

On March 5, 2012, respondent filed her Rule 4(c) Report, questioning both the onset of

petitioner’s illness plus whether or not he had GBS. Report at 10. In addition, respondent noted

that petitioner had not filed an expert report. Report at 11.

On March 7, 2012, the undersigned issued an Order stating petitioner shall file an expert

report by May 7, 2012.

On May 7, 2012, petitioner moved for an extension of time or a suspension of the

deadline within which to file an expert report until the factual dispute over whether petitioner

had dysphagia or dysphasia on the day he received flu vaccine was clarified.

On May 7, 2012, the undersigned granted petitioner’s motion and suspended the deadline

for filing an e xpert report.

On July 23, 2012, petitioner filed a report from his treating doctor that petitioner had

difficulty swallowing when he received flu vaccine.

On July 24, 2012, the undersigned issued an Order stating petitioner shall file an expert

report by September 24, 2012.

On September 24, 2012, petitioner moved for an extension of time until November 26,

2012 within which to file an expert report.

On September 24, 2012, the undersigned issued an Order granting petitioner’s motion

and setting a new dea dline of November 26, 2012 for petitioner to file an expert report.

On November 26, 2012, petitioner moved for an extension of time until January 26, 2013

within which to file an expert report.3

On November 30, 2012, the undersigned issued an Order granti ng petitioner’s motion and

setting a new deadline of January 25, 2013 for petitioner to file an expert report.

On January 25, 2013, petitioner moved for an extension of time until March 26, 2013

within which to file an expert report.

On January 29, 201 3, the undersigned issued an Order granting petitioner’s motion and

setting a new deadline of March 26, 2013 for petitioner to file an expert report.

On March 27, 2013, petitioner moved for a decision on the written record, stating: “It

does not appear li kely that Petitioner will be able to proffer the opinion of a medical expert in

support of vaccine causation of the injury alleged, to a level surmounting the preponderance

standard required by the Vaccine Act in this case. Given these circumstances, Peti tioner elects

not to pursue prosecution of the Petition all the way to a formal causation hearing with expert

witness testimony.” P et’r’s Motion for a Decision.

DISCUSSION

To satisfy h is burden of proving causation in fact, petitioner must prove by prepo nderant

evidence : “ (1) a medical theory causally connecting the vaccination and the injury; (2) a logical

sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a

showing of a proximate temporal relationship betwee n vaccination and injury.” Althen v. Sec’y

of HHS , 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen , the Federal Circuit quoted its opinion

in Grant v. Sec retary of H ealth and H uman S ervices , 956 F.2d 1144, 1148 (Fed. Cir. 1992):

A persuasive medical theo ry is demonstrated by “proof of a logical

sequence of cause and effect showing that the vaccination was the

reason for the injury[,]” the logical sequence being supported by

“reputable medical or scientific explanation[,]” i.e. , “evidence in

the form of sc ientific studies or expert medical testimony[.]”4

Without more, “ evidence showing an absence of other causes does not meet petitioners'

affirmative duty to show actual or legal causation. ” Grant , 956 F.2d at 1149 . Mere temporal

association is not sufficient to prove causation in fact. Id. at 1148.

Petitioner must show not only that but for the vaccine, he would not have had GBS (if

that is what he had) , but also that the vaccine w as a substantial factor in bri nging about h is GBS

.

Shyface v. Sec’y of HHS , 165 F.3d 1344, 1352 (Fed. Cir. 1999).

Petitioner has not filed any expert report in support of h is allegations. The undersigned

cannot rule in petitioner’s favor based solely on h is allegations without suppo rting medical

records or medical opinion. 42 U.S.C. § 300aa

- 13(a)(1).

Petitioner has failed to make a prima facie case of causation in fact. H e has designed not

to pursue prosecut ion of this case. This petition is hereby DISMISSED

.

CONCLUSION

Petitioner’s petition is DISMISSED . In the absence of a motion for review filed

pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

March 29, 2013 s/Laura D. Millman

DATE Laura D. Millman

Special Master

2 Pursuant to Vaccine Rule 11(a ), entry of judgment can be expedited by each party’s

filing a notice renouncing the right to seek review.