1

* * * * * * * * * * * * * * * * * * * WENDY NELSON, as parent and natural * Guardian of an infant, I.N., * UNPUBLISHED

* Petitioner, * No. 19

- 494V

*

v. * Special Master Dorsey

* SECRETARY OF HEALTH * Petitioner ’ s M o t ion for Decision Dismissing AND HUMAN SERVI CES, * H er Petition ; Measles, Mumps, Rubella, and

* Varicella (“ MMRV ”) Vacc ine ; Seizures; Respondent. * A naphylaxis ; E ncephalopathy ; A noxic Brain

* Injury ; Hypoxic Brain Injury ; Depression

. * * * * * * * * * * * * * * * * * * *

Bruce W. Slane
, Law Office of Bruce W. Slane, P.C., White Plains, NY , for petitioner. Alexis B.Babcock , United States Department of Justice, Washington, DC, for respondent.

DECISION 1

On April 3 , 2019
, Wendy Nelson (“petitioner”)
, as parent and natural guardian of infant, I.N., filed a petition for compensation under the Na tional Vaccine Injury Compensation Program (“ Vaccine Program”) 2 alleging that I.N. suf f ered “ non

- epileptic seizures, tonic

- clonic seizures, general seizures, anaphylaxis, encephalopathy, anoxic brain injury, hypoxic brain injury, and depression ” as a result of measles, mumps, rubell a, and varicella (“ MMRV ”) vaccination

a dmi n istered on April 6, 2016

. Petition at 1

. The inform ation in the reco rd, however, does not show entitlement to an award under the Program.

1 Because th is Decision contains a reas o ned explanat ion for the action in this case, the unders igned is requir ed to post it on the Un ited States Court of Fed er al Cla ims’ website in

acc ordance with the E

- Government Act of 20 02. 44 U.S

. C. § 3501 note (2012) ( Federal Ma nagement and Promotion of E l ectronic Gov ernment Services). This means the Decision will be availa ble to anyone with acce ss to the I nternet. In ac cordan ce wi th Vaccine Rul e 18(b), petitioner has 14 days to iden tify and mo v e to redact medical or other info rmation, the disclosure of w hich would c onstitute an unwarranted invasion of privac y. If, upon re view, the undersigned

a grees that the iden tifie d materi al fi ts within this definition, the undersigned will redac t such
mate r ial from public access.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U .S.C. §§ 30 0 aa

- 10 et seq

. (hereinafter “Vaccine Act” or “the Act ”). Hereaf ter, indivi dual section references will be to 42 U.S. C. § 300aa of the Act. 

# In the Uni ted State s Court of Federal Claims

OFFICE OF S PECIAL M ASTERS Filed: June 16, 20202

IT IS S O ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Special Master On June 15 , 2020, petitione r moved for a de cisi on dismissing he r case, stating that she

“ does not wish to provide further proof a nd/or cannot provide e vidence that will meet the standards of the Court to show entitlement to compensation in the Va cc ine Program, ” and thus,

“ to proceed any fu rther would be unre asonable a nd may waste the r esources of th e C ourt, the [r]espondent, and the Vaccine Program. ” Petitioner ’ s Motion for Decisi on Dismissing Her Petition, file d June 15 , 2020, a t ¶¶ 1- 2 (ECF No. 31). Petitioner states tha t she understands that a decision by the Spec ial Master will re sult in a judgment against h er , and tha t she ha s been advised that such judgment will end all of h er righ ts under the Vacc ine Act. Id. at ¶ 3. Petitioner states that she intends to protect her right to file a civil a ction a nd to elect to reject the Vaccine Progra m judgment to file a c ivil action. Id. at ¶ 5.

To receive compensation under the P rogram, petitioner must prov e e ithe r (1) tha t I.N.. suffered a “ Ta

ble Injury”— i.e., an injury fa lling w ithin the Va cc ine Injury Table

— corresponding to the va ccination, or ( 2) that I.N. s uff ere d an injury that was actually caused by the vaccination. See §§ 13(a)(1)(A) a nd 11(c)(1). The r ecords submitted by pe titioner show that she does not meet the statut ory re quirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to compensation. The Federal Circuit ha s explained that the e ligibility r equirements in Section 11(c) are not mere ple ading r equirements or matters of proo f at tri al, but inst ead are “ threshold criteri[a] for se eking e ntry into the compensation p rogram.” Black v. Sec ’ y of Healt h & Huma n Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996).

Accordingly
, in light of petitioner ’ s motion and a r eview of the record, the u ndersigned f i nds that petitioner is not entitled to compensation. Thus, this case is dismissed. The Clerk shall e nter jud gment accordingly.