# In the Unit **ed States Court of Federal Claims**

OFFICE OF SPECIAL MASTERS

Filed: December 22, 2021

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

ROBERT VINER

, * No. 20

- 357 V

*

* Special Master Sanders

Petitioner, *

v. *

*

SECRETARY OF HEALTH * Dismissal; Insufficient Proof;

AND HUMAN SERVICES, * Diphtheria

- Tetanus

- Pertussis (“Tdap”)

* Vaccine; Rheum atoid Arthritis ( “ RA ” )

R e s p o n d e n t

. *

*

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

Amy A. Senerth

, Muller Brazil, LLP

, Dresher

, PA , for Petitioner.

Meghan Murphy , U.S. Department of Justice, Washington, DC, for Respondent.



### DISMISSAL 1

On March 27, 2020

, Robert Viner (“Petitioner”) filed a petition for compensation under

the National Vaccine Injury Compensation Program 2 (“Vaccine Program” or “Program”). 42

U.S.C. § 300aa

- 10 to 34 (2012). Petitioner alleged that he suffered from rheumatoi d arthritis

(“ RA ”) followi ng receipt of the diphtheria

- tetanus

- pertussis (“Tdap”) vaccine on September 18,

2018

. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to

an award under the Program.

On December 1 9 , 2021 , Petitioner filed a motion for a decision dismissing h is petition.

ECF No. 3 0

. In h is motion, Petitioner stated that he “is unable to retain an expert in order to support

causation

- in

- fact, and will therefore be unable to prove that he is entitled to compensation in the

Vac cine Program.” Id. ¶ 2

. H e continued, “ [i] n these circumstances, to proceed further would be

1 This D ecision shall be posted on the United States Court of Federal Claims’ website, in accordance with

the E

- Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of

Electronic Government Services). This means the Decision will be available to anyone with access to

the Internet . 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 D ecision. If, upon review, the I

agree that the identified material fits within the requirements of that provision, such material will be deleted

from public access.

2 National Childho od Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755 (“the Vaccine Act”

or “Act”). 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 unreasonable

, and would waste the resources of th is Court, R espondent, and the Vaccine

Program.” Id. ¶ 3

.

To receive compensation under the Program, Petitioner must prove either (1) that Petitioner

suffered a “Table Injury”

— i.e., an injury falling within the Vaccine Injury Table

— corresponding

to the vaccination, or (2) that he suffered an injury that was actu ally caused by a vaccine. See §§

13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that Petitioner

suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Petitioner ’ s

alleged injur ies w ere ca used by the Tdap vaccine

.

Under the Act, petitioners may not be given a Program award based solely on their claims

alone. Rather, the petition must be supported by medical records or the opinion of a competent

physician. § 13(a)(1). In this case, the m edical records are insufficient to prove Petitioner’s claim,

and at this time, Petitioner has not filed a supportive opinion from an expert witness. Therefore,

this case must be dismissed for insufficient proof. The Clerk shall enter judgment

accordingly

. 3

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders

Special Master

3 Pursuant to Vacci ne Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice

renouncing the right to seek review.