# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

ERWIN EVANS, *

* No. 20

- 527 V

* 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 S tates Dep’t of Justice, Washington, D.C., for respondent.

UNPUBLISHED DECISION DENYING COMPENSATION 1

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

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

pe ripheral 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.2

on October 23, 2020, contesting entitlement. A status conference was then held on

November 4, 2020

, and p etitioner 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 report s

from Dr. Chester Oddis on May 2 8 , 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 fro m 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 t he

vaccinee suffered a “Table Injury”

– i.e., an injury falling within the Vaccine

Injury Table

– corresponding to one of the vaccinations, or 2) that t he 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, p etitioner 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 p etitioner filed this motion pursuant to 42 U.S.C. § 300aa

— 21(a) (regarding voluntary di smissal), 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 fut ure. See Pet’rs’ Mot., filed Feb. 3

, 202 2 , ¶ 8

.2

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 fi nding that the flu vaccine can caus e reactive arthritis. The evidence also preponderates against finding that the flu

vaccine did cause petitioner’s reactive arthritis.

Thus, th e Motion for Decision is GRANTED and this case is

DISMISSED WITH PREJUDICE for insufficient proof . The Cler k shall

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

IT IS SO ORDERED

.

s/Christian J. Moran

Christian J. Moran

Special Master