1 

# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: May 18 , 2016

* * * * * * * * * * * * * * UNPUBLISHED

HAILEY DAVIS and CHAD DAVIS, *

as Parents and Natural Guardians of *

R.D., a Minor, *

* No. 15

- 159V

Petitioner s

, *

*

v. * Chief Special Master Dorsey

*

SECRETARY OF HEALTH * DTP; DTap; DT; Hib; PCV;

AND HUMAN SERVICES, * Motion to Dismiss; Insufficient Proof.

*

Respondent. *

*

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

Renee Gentry , Vaccine Injury Clinic, George Washington University Law School, Washington,

DC, for petitioners.

Heather Lynn Pearlman , U.S. Department of Justice, Washington, DC, for respondent.

D ECISION DISMISSING PETITION 1

On February 29, 2015 , Hailey and Chad Davis (“petitioners”) filed a petition for

compensation under the National Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et seq

. (2012) (“Vaccine Act”), on behalf of their son, R.D., a minor. Petitioners allege that R.D.

suffered from mitochondrial disease/dysfunction as a result of receiving the DTP, DTa p , DT,

Hib, and PCV vaccinations on February 20, 2012, and the FluMist vacci nation on October 22,

2012. Petition at Preamble.

On May 16 , 2016, petitioners filed a Motion to Dismiss. Motion to Dismiss dated May

15, 2016 (ECF No. 43). Petitioners stated that they will be unable to prove that R.D. is entitled

1 Because this unpublished decision contains a reasoned explanation for the action in this case,

the undersigned intends to post this decision 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). In accordance with

Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other

information, th at satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with the rule

requirement, a motion for redaction must include a proposed redacted decision. If, upon review,

the undersigned agree s that the identified material fits within the r equir ements of that provision,

she will delete such material from public access.2

to compensation in the Program and that to proceed further would be unreasonable. Petitioners

also stated that they understand that a decision dismissing their petition will terminate all of their

rights in the Vaccine Program. Furthermore, petitioners wished to retain the ir right to file a civil

action in the future and thus intend to elect to reject the Vaccine Program judgment.

To receive compensation under the Program, petitioner s must prove either : 1) that R.D.

suffered a “Table Injury”

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

— corresponding

to a vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§

300aa

- 13(a)(1)(A) and 300aa

- 11(c)(1). An examination of the record did not uncover any

evidence that R.D. suffered a “Table Injury,” n or do petitioner s allege that he su ffered a “Table

Injury.” Further, the record does not contain any pers uasive evidence indicating that R.D.’s

injury was caused by the vaccinations he received on either February 20, 2012, or October 22,

2012

.

Under the Vaccine Act, a petitioner may not be awarded compensation based solely on

the petitioner’s claims. Rather, the petition must be supported by either medical records or by

the opinion of a competent physician. § 300aa

- 13(a)(1). In th is case, because the medical

records are insufficient to establish entitlement to compensation, a medical opinion must be

offered in support . However, petitioner s ha ve not filed an expert report.

Accordingly, it is clear from the record in this case that petitioner s have failed to

demonstrate either that R.D. suffered a “Table Injury” or that his injuries were caused

- in

- fact by

one or more of his vaccination s

. Thus, this case is dismissed for insufficient proof. In the

absence of a motion for review, the Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master