In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

ERWIN EVANS, *

* No. 20-527V

* Special Master Christian J. Moran

Petitioner, *

*

v. *

* Filed: February 9, 2022

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Entitlement; dismissal.

* 

Respondent. *

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

Bruce W. Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for 

petitioner; 

Zoe Wade, United States Dep’t of Justice, Washington, D.C., for respondent.

UNPUBLISHED DECISION DENYING COMPENSATION1

Erwin Evans alleged that the influenza (“flu”) vaccine he received on 

September 12, 2017, caused him to suffer from polyarthralgia, polyneuropathy, 

peripheral neuropathy, myalgias, paresthesia, arthritis, and vertigo. Pet., filed Apr. 

28, 2020, at Preamble. On February 3, 2022, Mr. Evans moved for a decision 

dismissing his petition.

I. Procedural History

Erwin Evans (“petitioner”) filed a petition on April 28, 2020. After 

petitioner filed his initial medical records, the Secretary filed his Rule 4(c) report 

1 The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of 

Electronic Government Services). Pursuant to Vaccine Rule 18(b), the parties have 14 days to 

file a motion proposing redaction of medical information or other information described in 42 

U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the 

document posted on the website.
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on October 23, 2020, contesting entitlement. A status conference was then held on 

November 4, 2020, and petitioner was ordered to file an expert report. 

Petitioner filed an expert report from Dr. David Axelrod along with medical 

literature on February 9, 2021. Dr. Axelrod opined that the flu vaccination caused 

petitioner to suffer reactive arthritis. Respondent filed responsive expert reports

from Dr. Chester Oddis on May 28, 2021 and from Dr. Lindsay Whitton on June 

29, 2021. Dr. Oddis opined that enteric infection caused petitioner’s reactive 

arthritis. Petitioner filed a supplemental report from Dr. Axelrod on September 30, 

2021. Respondent filed a second responsive report from Dr. Whitton on 

November 19, 2021. During the December 8, 2021 status conference, petitioner 

announced he would not file any more expert reports. See order, issued Dec. 9, 

2021. 

Based on the evidence and the parties’ reports, the undersigned issued 

tentative findings on January 5, 2022. Subsequently, on February 3, 2022, 

petitioner moved to dismiss his petition.

This matter is now ready for adjudication.

II. Analysis

To receive compensation under the National Vaccine Injury Compensation 

Program (hereinafter “the Program”), a petitioner must prove either 1) that the 

vaccinee suffered a “Table Injury” – i.e., an injury falling within the Vaccine 

Injury Table – corresponding to one of the vaccinations, or 2) that the vaccinee 

suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) 

and 300aa-11(c)(1). Under the Act, a petitioner may not be given a Program award 

based solely on the petitioner’s claims alone. Rather, the petition must be 

supported by either medical records or by the opinion of a competent physician. 

§ 300aa-13(a)(1). 

In this case, petitioner filed medical records and expert reports in support of 

his claim, but nonetheless, wish to have his claim dismissed and judgment entered 

against him. Though petitioner filed this motion pursuant to 42 U.S.C. § 300aa—

21(a) (regarding voluntary dismissal), the undersigned will construe this as a 

motion filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary 

dismissal), given petitioner’s clear intent that a judgment issue in this case, 

protecting his right to file a civil action in the future. See Pet’rs’ Mot., filed Feb. 3, 

2022, ¶ 8. 
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To conform to section 12(d)(3), a decision must “include findings of fact and 

conclusions of law.” Here, although the parties were in the process of presenting 

arguments, the evidence weighs against a finding that the flu vaccine can cause 

reactive arthritis. The evidence also preponderates against finding that the flu 

vaccine did cause petitioner’s reactive arthritis. 

Thus, the Motion for Decision is GRANTED and this case is 

DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall 

enter judgment accordingly. See Vaccine Rule 21(b). 

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master