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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 326 V

Filed: November 2, 2018

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

LARRY THOMPSON

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. *

*

*

*

*

*

*

*

*

* Special Master Oler

Petitioner’s Motion for a Decision ; Dismissal of Petition; Vaccine Act; Denial Without Hearing.

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

Lawrence Gene Michel

, K ennedy, Berkley, et al

. , Salina, KS , for Petitioner.

Amy Paula Kokot

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

. C

. for Respondent.

DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1

On March 9, 2017

, Larry Thompson (“Petitioner”), filed a petition for compensation in the

National Vaccine Injury Compensation Program (“the Program”), 2 alleging that he suffered from Idiopathic Thrombocytopenia Purpura (“ITP”) as a result of receiving a tetanus, diphtheri a, and pertussis (“Tdap” ) vaccine on April 18, 2016. Petition (“Pet.”) at 1, ECF No. 1

. On that same

date , Petitioner also filed an affidavit ( see Ex. 1, ECF No. 1

- 1), and three additional exhibits comprised of medical records ( see Exs . 2

- 4, ECF Nos. 1

- 2 thru 1

- 4).

On April 21, 2017, Petitioner filed a Statement of Completion, attesting that “all of the records required by [the Vaccine Act] pertaining to the ab ove

- captioned case” were filed as of that

date

. See Statement of Completion, ECF No. 7. In response, the special master who was initially

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the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 decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days withi n 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 which wou ld constitute a clearly unwarranted invasion of privacy.” Vaccine R ule 18(b). Otherwise, the Decision in its present form will be available.

Id.

2 National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Vaccine Program” ), Pub. L. No. 99

- 660, 100

Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

assigned this case issued an order on April 24, 2017, requesting that Respondent file a status report stating whether Respondent agree s that the records are complete

. ECF No. 8. On September 19, 2017, Respondent filed a status report stating that his initial review indicated that the “record appears complete for purposes of filing [his] Rule 4(c) Report, ” and proposed a date for filing that

report. ECF N o. 13.

Respondent filed a Rule 4(c) Report on November 28, 2017, recommending that

com pensation be denied and this case be dismissed

. See Respondent’s Rule 4(c) Report at 1, 7

, ECF No. 16. In his Rule 4(c) Report, Respondent poi nted out

, among other things, that the record

as of Novem ber 28, 2017, did not reflect that Petitioner had met the Vaccine Act’s severity requirements set forth at § 300aa

- 11(c)(1)(D)

. 3 S ee Id

. at 6

- 7

.

This case was transferred to my docket on December 1, 2017

. ECF No. 18

. On December 5, 2017, Petitioner filed a status report requesting time to file an expert report in support of his claim; I granted that request. See ECF No. 21; see also non

- PDF Order of December 7, 2017. On April 2, 2018, instead of filing an expert report, Petitioner filed a motion for a ruling on the record.

ECF No. 2 3. In that one

- page motion, Petition er referenced the four exhibits that had been filed up to that point in this case

, and, without more, deemed those “records to support a ruling in favor of [P]etitioner.” Respondent filed a response on April 16, 2018, stating (1) that “[P]etitioner has failed to provide preponderant evidence in support of his causation

- in

- fact claim,” and (2) that “the record does not reflect that [P]etitioner’s ITP or its sequela persisted for more than six months after

the administration of his Tdap vaccine.” See ECF No. 24 at 1.

I issued a S cheduling Order on July 27, 2018, informing the parties that Petitioner ’ s motion for a ruling on the record was not in compliance with this Court’s d irectives, as outlined in the

Guidelines for Practice Under the National Vaccine Injury Compensation Program (“Guidelines” ), 4 posted on the Court’s website. 5 ECF No. 25 at 3

. Additionally

, in that s cheduling

o rder

, I informed the parties that the record, as it existed at that time , did not reflect that Petitioner’s

3 Speci fically, §300aa

- 11(c)(1)(D ) of the Vaccine Act requires that a Petitioner either show that : ( 1) he “su ffered the residual effects or complications of [his alleged ITP] for more than 6 months after the administration of the vaccine ” ( see §300aa

- 11(c)(1)(D)(i)); ( 2) that he “died from the administration of the vaccine” ( see §300aa

- 11(c)(1)(D)(ii)); or ( 3) th at his ITP “resulted in inpatient hospitalization and surgical intervention ” ( see § 300aa

- 11(c)(1)(D)( ii i ) )

.

4 I n relevant part , Section IX of the Guidelines state s the following regarding a motion for a ruling on the record:

In the motion, petitioner should specifically identify the evidence in the record on which petitioner relies with reference to the exhibit numbers and specific page numbers, as well as specific statements, diagnoses, and conclusions made by medical professionals that support petitioner’s claim. Simply ref erring to exhibits generally is insufficient

. Petitioner should also explain how this information supports petitioner’ s theory of causation in the absence of an expert me dical opinion . A template for a motion for a ruling on the record is available at http://www.uscfc.uscourts.gov/vaccinesample

- filings

.

Guidelines at 62, emphasis added. I thus informed Petitioner that his one

- page motion for a ruling on the record,

which lacked proper explanation and analysis of the m edical recor ds in support of his claim, did not meet the standards

articulated in the Guidelines. ECF No. 25 at 3.

5 The posted Guidelines can be accessed at the following link: https://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES

- FOR

- PRACTICE

- 4212016.pdf

.3

ITP or its sequela persisted for more than six months after th e admi n istration of his Tdap vaccine.

Id

. Accordingly

, I order ed Petitioner to either file: 1) additional medical records and a brief articulating how Petitioner met the six

- month injury requirement in this case ; or 2) a motion for a

dismi ssal decision , as articulated in the Guidelines

. Id . at 4. Petitioner subsequently requested a n extension of time (ECF No. 26) , which I granted ( s ee non

- PDF Scheduling Order of 9 /26 /2018).

On October 25 , 2018, Petitioner filed his present mot ion to dismiss this case . Motion to Dismiss, ECF No. 27

. In that Motio n, Petitioner “ moves for a decision by the Special Master dismissing his case

, ” stating that “ [a]n investigation of the facts and science supporting his case has d emonstrated to [P]etitioner that he will be unable to prove that he is entitled to compensation in the Vaccine Program. ” I d . at 1 . A member of my staff communicated with counsel for both

par ties via electronic mail on November 2, 2018, requesting Respondent to state his po sition on

this inst ant Motion. Respondent ’ s counsel indicated that Respondent does not oppose t his instant

motion

.

To receive compensatio n under the Vaccine Program, P etitio ner must prove either (1) that

he suffered a “Table Injury”

-- i.e ., an injury falling within the Vaccine Injury Ta ble

-- f rom h is Tdap vaccination , or (2) that he suffered an injury that was actually caused by h is Tdap vaccination

. 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 rogram 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 to meet
his burden of proof. Petitioner ’ s claim therefore cannot succeed and must be dismissed. Section 11(c)(1)(A).

Thus, this case is d ismissed for insufficient proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler Special Master