# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 09

- 221 V

Filed: January 9, 2014

* * * * * * * * * * * * * * * * * * * * * * * * * * * NOT TO BE PUBLISHED

DIKSHA BATISH, *

* Special Master

* Hamilton

- Fieldman

*

Petitioner, * Petitioner’s Motion for Ruling on the

v. * Record; Insufficient Proof of Causation;

* Vaccine Act Entitlement; Denial Without

SECRETA RY OF HEALTH * Hearing.

AND HUMAN SERVICES, *

*

Respondent. *

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

Thomas Gallagher

, Somers Point, NJ , for Petitioner.

Alexis Babcock , Washington, DC, for Respondent.

DECISION 1

On A pril 14, 2009, Meena Sharma and Sat Dev Batish (“Petitioners”) filed a petition on

behalf o f their daughter Diksha Batish for compensation under the National Vaccine Injury

Compensation Program (“the Program”), 42 U.S.C. §300aa

- 10, et seq. (2006), 2 alleging that

their daughter suffered from acute myopathy as a result of receiving the Tetanus booster and

1 The undersigned intends to post this unpublished decision on the United States Court of

Federal Claims’ website, in accordance with the E

- Government Act of 2002, Pub. L. No. 107

347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S. C. § 3501 note (2006)). As

provided by Vaccine Rule 18(b), each party has 14 days within which to file a motion for

redaction “of any information furnished by that party (1) that is trade secret or commercial or

financial information and is privileged or confidential, or (2) that are medical files and similar

files the disclosure of which would constitute a clearly unwarranted invasion of privacy.”

Vaccine Rule 18(b). In the absence of such motion, the entire decision will be available to the

public. Id

.

2 The National Vaccine Injury Compensation Program comprises Part 2 of the National

Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as amended,

42 U.S.C. §§ 300aa

- 10 et seq . (2006). Hereinafter, individual section r eferences will be to 42

U.S.C. § 300aa of the Vaccine Act.Mena ctra (Menin gitis) vaccinations on April 14, 2006. Pet ition (“Pet.”) at 1, ECF No. 1

. 3

During the pendency of th is case, Diksha Batish reached the age of majority and as such the case

was re

- captioned lis ting her as the sole Petitioner. Motion, ECF No. 76; Order, ECF No. 77.

The information in the record does not show entitlement to an award unde r the Program.

On January 9, 2014, Petitioner moved for a decision dismissing her petition

, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation.

To receive compensation under the Pro gram, Petitioner must prove either 1) that Diksha

suffered a “ Table Injury ”

- i.e., an injury falling within the Vaccine Injury Table

- corresponding to

one of Diksha ’ s vaccinations, or 2) that Diksha suffered an injury that was actually caused by a

vaccin e. See §§ 13 (a)(1)(A) and 11(c)(1). An examination of the record did not uncover any

evidence that Diksha suffered a “ Table Injury. ” Further, the record does not contain a medical

expert ’ s opinion or any other persuasive evidence indi cating that Diksha ’ s alleged injury was

vaccine

- caused.

Under the Act, 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. § 13(a)(1). In this case, because there are insufficient

medical records supporting Petitioner ’ s claim, a medical opinion must be offered in support.

Petitioner, however, has offered no such opinion.

Accordingly, it is clear fr om the record in this case that Petitioner has failed to

demonstrate either that Diksha suffered a “ Table Injury ” or that Diksha ’ s injuries were “ actually

caused ” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall

enter judgment accordingly.

IT IS SO ORDERED.

/s/ Lisa D. Hamilton

- Fieldman

Lisa D. Hamilton

- Fieldman

Spe cial Master

3 The Petition reflects that Petitioner received a Tetanus booster and Menactra

vaccination on April 14, 2006; however, Petitioner’s records from Dr. Gargi Gandhi reflect an

administration of “ Adac el and Menactra ” on April 14, 2006. See Pet’r’s Ex. 1 at 15

- 16. Adacel

is an active booster immunization for the prevention of tetanus, diphtheria, and pertussis.