# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

SINIDU ROBI and * YILAK KEBEBEW, legal * representatives of a minor child, * DAGIM YILAK, * No. 12

- 352V

* Special Master Christian J. Moran Petitioners, *

*

v. * Filed: July 1 , 2014

*

SECRETARY OF HEALTH * Decision on the record;
AND HUMAN SERVICES, * insufficient proof of causation;

* Table encepha lopathy; seizure

* disorder ; infantile spasms

. Respondent. *

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

Simina Vourlis

, Law Offices of Simina Vourlis, Columbus

, OH, for petitioner; Jennifer L. Reynaud , United States Dep’t of Justice, Washington, DC, for respondent.

UNPUBLISHED DECISION DENYING COMPENSATION 1

Sinidu Robi and Yilak Kebebew filed a petition for compensation under the National Childhood Vaccine Injury Compensation Program (the “Vaccine Act” or “Program”), 42 U. S.C. § 300aa

- 10 through 34 (2006), alleging that their son, Dagim, received the combined diphtheria

- tetanus

- acellular pe r tussis/ haemophilus

influenza e type B / inactivated polio (“DTa P

- HIB

- IPV”), h epatitis B, Prevnar pneumococcal 7

- valent conjugate and r ot avirus vaccines on June 18, 2009. The

1 T he E

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

- 347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this ruling on its website. 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

petition proposed two causes of action. First, the petitioners alleged that Dagim

suffered an on

- Table encephalopathy. Petition at ¶¶ 3

- 4, 6

- 9. Alternatively, petitioners allege d that the vaccines were the cause

- in

- fact of other injuries, including seizures, infantile spasms with intractable epilepsy, hypertonia, and developmental delays. Id. at 5. The information in the record, however, does not show entitlement to an award under the Program.

I. Procedural History

An initial status conference was held on July 17, 2012 . During this conference, the deadline for respondent’s Rule 4 report was suspended so petitioners could collect additional medical records. In support of their petition, petitioners periodically file d several medical records (exhibits 1

- 13) and affid avits supporting those records (exhibits 14

- 15), followed by a statement of completion on September 17, 2012.

Respondent filed her report concluding that petitioners failed to fulfill the criteria for a Vaccine Table injury and failed to demonstrate by a preponderance of

the evidence that Dagim’s seizure disorder was caused by the various vaccines

received on June 18, 2009 . Resp’t’s Rep ., filed Nov. 8, 2012 , at 14

. With respect

to the on

- Table claim, respondent argued that no contemporaneously created medical records supported the allegation that Dagim experienced an encephalopathy within the time listed on the Vaccine Injury Table. Id

. at 10. With respect to petit ioners ’ other claim, r espondent argued that petitioners did not

establish a medical theory causally connecting the vaccines to Dagim’s other injuries

. Id

.

A status conference was held on Novemb er 20, 2012 . In this conference, petitioners were ordered to file a status report regarding their intentions to pursue

the on

- Table claim. Petitioners did file this report, which stated that they would

file additional affidavits. Petitioners filed supplementa l affidavits (exhibits 17

- 19) on January 16, 2013.

A factual hearing was held June 20, 2013

, in Columbus, Ohio , where Dagim’s mother, father, brother, and aunt testified. Three of the witnesses testified

with the assistance of an interpreter. On April 4, 2014, Findings of F act were issued stating that Dagim’s excessive eye blinking began on August 10, 2009. Findings of Fact at 8

. This date is 53 days after his June 18, 2009 vaccinations and

four days before his next set of vaccinations.3

A status conference was held on April 24, 2014 , during which petitioners indicated they intended to seek an expert to support their causation

- in

- fact cause of

action . The petitioners requested 60 days to search for an expert, and, consequently, were ordered to file their expert report by June 25, 2014. On June
27, 2014, petitioners moved for a decision dismissing their petition. Petitioners

state that although they disagree with the undersigned’s finding of fact as to the date of onset, they “have chosen not to pursue further proceedings in the case.”

Pet’r’s Mot ., filed June 27 , 2014, at 1

- 2

. Accordingly, thi s case is now ready for adjudication

.

II. Analysis

To receive compensation under the National Vaccine Injury Compensation Program (hereinafter “the Program”), petitioner s must prove either 1) that Dagim suffered a “Table Injury”

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

– corresponding to her vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§ 300aa

- 13(a)(1)(A) and 3 00aa

- 11(c)(1).

As indicated above, the April 4, 2014 Findings of Fact credited medical records created in 2009 that indicated that Dagim’s neurologic problems began weeks after his June 18, 2009 vaccination. The Findings of Fact did not accept as

persu asive the petitioners’ recollections from years later. The Findings of Fact essentially prevented the petitioners from prevailing upon an on

- Table claim. Thus, petitioners are necessarily pursuing a n off

- Table / causation

- in

- fact claim.

Under the Vac cine 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, because the medical records do not support petitioners ’ claim, a medical opinion must be offered in support. H owever, petitioners have offered no such opinion.

Accordingly, it is clear from the record in this case that petitio ners failed to

demonstrate either that Dagim suffe red a “Table Injury” or that his injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.

Any questions may be d irected to my law clerk, Marc Langston, at (202)

357

- 6392

.4

IT IS SO ORDERED.

S/Christian J. Moran

Christian J. Moran Special Master