# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1974V

(not to be published)

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

JEANA MILTON, * Filed: March 11, 2019

Personal Representative of the Estate of *

Thirza Arlene Bagley, Deceased

, *

*

Petitioner, * Dismissal; Lack of Expert.

*

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

Scott W . Rooney , Nemes, Rooney P.C., Farmington Hills, MI for Petitioner.

Robert P. Coleman, III , U.S. Dep’t of Justice, Washington, D.C. for Respondent.

DECISION DISMISSI NG CASE 1

On December 19, 2017, Jeana Milton filed a petition in the National Vaccine Injury

Compensation Program 2 on behalf of the estate of Thirza Arlene Bagley. ECF No. 1. Petitioner

alleged that the influenza and zoster

- shingles vaccines Ms. Bagley received on March 8, 2015,

caused her to develop herpes simplex virus encephalitis, which in turn caused cardiorespiratory

arrest, leading to Ms. Bagley’s death on December 20, 2015. Id. at 3.

1 Although this D ecision has been formally designated “not to be published,” it will nevertheless be posted on the

Court of Federal Claims’s website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012)). This

means that the Decision will be availa ble to anyone with access to the internet. As provided by 42 U.S.C. § 300aa

12(d)(4)(B), however, the parties may object to the D ecision’s inclusion of certain kinds of confidential information.

Specifically, under Vaccine Rule 18(b), each party has fourte en days within which to request redaction “of any

information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged

or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly

unwarranted invasion of privacy.” Vaccine Ru le 18(b). Otherwise, the whole D ecision will be available to the public

in its current form

. Id

.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (2012) (“Vaccine Act” or “the Act”)

. Individual section references herea fter will be to § 300aa of the Act (but will omit that statutory prefix)

.2

On September 14, 2018, Respondent filed his Rule 4(c) Repor t, in which he expressed his

view that compensation is not appropriate in this case. ECF No. 21 at 2. In response, Petitioner

initially sought an expert opinion to substantiate her claim, but on January 9, 2019, she filed a

status report indicating that sh e had been unable to find such expert support. ECF No. 24.

Acknowledging that she would be unable to demonstrate entitlement to compensation, Petitioner

thereafter filed a Motion requesting dismissal of her case on March 6, 2019.

After reviewing the records filed in this case, as well as Petitioner’s own statement that she

is unable to obtain expert support for her claim, I find that the requested dismissal is appropriate. 3

Under the Vaccine Act, a petitioner may not be given a Vaccine Program award ba sed solely on

her claims alone. Rather, the petition must be supported by either medical records or by the opi nion

of a competent physician. Section 13(a)(1). In this case, there is insufficient evidence in the record

for Petitioner to meet her bur den of proof. Petitioner’s claim therefore cannot succeed and must

be dismissed. Section 11(c)(1)(A).

Thus, this case is dismissed for insufficient proof. The Clerk shall enter jud gment

accordingly. 4

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

3 Petitioner’s Motion to Dismiss is docketed as Motion for Voluntary Dismissal Pursuant to Rule 21(a). However,

Vaccine Rule 21(a) only permits voluntary dismissal of claims before servic e of Respondent’s Rule 4(c) Report (Rule

21(a)(1)(A)) or by stipulation of dismissal signed by all parties (Rule 21(a)(1)(B)). Petitioner’s Motion was filed

several months after the filing of Respondent’s Rule 4(c) Report, and the parties did not stipulate to the dismissal of

this matter. I am therefore dismissing this case in a manner consistent with Rule 21(b). Judgment shall be entered

accordingly.

4 Pursuant to Vaccine Rule 11(a), the parties may expedite judgment by filing a joint notice renouncing t heir right to

seek review.