# In the United States Court of Federal C laims

O FFICE OF SPECIAL MASTERS

No. 1 5

- 11 V

February 27 , 201 5

Not to be Published

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

WYATT TANNER, *

*

Petitioner, *

*

v. * Influenza (“flu”) vaccine; transverse

* myelitis (“TM”); less than one day onset;

SECRETARY OF HEALTH * no expert witness; petitioner’s motion

AND HUMAN SERVICES, * for decision on written record; dismissed

*

Respondent

. *

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Isaiah R. Kalinowski

, Washington

, DC , for petitioner.

Jennifer L. Reynaud , Washington, DC, for respondent.

MILLMAN, Special Master

DE CISION 1

On January 5, 2015 , petitioner sued un der the National Childhood Vaccine Injury Act, 42

U.S.C. §§ 300aa

- 10

– 34 (2006), alleging that influenza (“flu”) vaccine caused his transverse

myelitis (“TM”)

. Although t he petition is unspecific as to the onset of petitioner’s TM after

vaccination, medical records show the onset was the same day as vaccination

.

1 Because this decision contains a reasoned explanation for the special master’s action in this

case, the special master intends to post this decision on the United States Court of Federal

Claims’ website, in accordance with the E

- Government Act of 2002, Pu b. L. No. 107

- 347, 116

Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special

masters will be made available to the public unless they contain trade secrets or commercial or

financial information that is privileged a nd confidential, or medical or similar information whose

disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is

filed, petitioners have 14 days to identify and move to redact such information prior to the

document’ s disclosure. If the special master, upon review, agrees that the identified material fits

within the categories listed above, the special master shall redact such material from public

access.2

On February 10, 2015, the undersigned held t he first telephonic status conference with

counsel to discuss the difficulty of petitioner proving that flu vaccine coul d cause TM on the

same day as vaccination.

On February 27 , 2015, petitioner filed a M otion for a D ecision on the W ritten R ecord,

stating

, “Petitioner does not deem it worthwhile to pursue prosecution of the Petition all the way

to a hearing with expert w itnesses, and believes the Court has sufficient information to rule on

the issue of causation, pursuant to Vaccine Rule 8.” Pet ’r’s Mot. ¶ 5.

The undersigned GRANTS petitioner ’ s motion and DISMISSES this case for failure to

prove that flu vaccine caused petitioner’s TM

, which began on the day of vaccination

.

FACTS

Petitioner was born on June 6 , 19 80

.

On September 6, 2012, he received flu vaccine. Med. recs. Ex. 1, at 2.

On September 9, 2012, he went to Mt. Carmel East Hospital where he s aid since

Thursday ( September 6

, 2012), he had “generalized body aches with urinary frequency,

abdominal pain, malaise, sensitive skin, and fatigue.” Med. recs. Ex. 3, at 641.

On September 12, 2012, he went to Mt. Carmel East Hospital where he gave a history

that on Thursday (September 6

, 2012), petitioner “received his flu vaccine and later on in the

day, he had some tingling and restlessness of his legs.” Med. recs. Ex. 4, at 50.

During p etitioner’s hospitalization at Mt. Carmel Ea st, which lasted from September 14

to 21, 2012, he was diagnosed with transverse myelitis. Id. at 36.

DISCUSSION

To satisfy hi s burden of provin g causation in fact, petitioner must prove by preponderant

evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical

sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a

showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y

of HHS , 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen , the Federal Circuit quoted its opinion

in Grant v. Secretary of Health and Human Services , 956 F.2d 1144, 1148 (Fed. Cir. 1992):

A pe rsuasive medical theory is demonstrated by “proof of a logical

sequence of cause and effect showing that the vaccination was the

reason for the injury[,]” the logical sequence being supported by a3 “reputable medical or scientific explanation[,]” i.e. , “evi dence in

the form of scientific studies or expert medical testimony[.]”

418 F.3d at 1278.

Without more, “evidence showing an absence of other causes does not meet petitioners’

affirmative duty to show actual or legal causation.” Grant , 956 F.2d at 1149 . Mere temporal

association is not sufficient to prove causation in fact. Id. at 1148.

Petitioner must show not only that but for flu vaccin e

, he would not have TM, but also

that the vaccine w as a substantial factor in causing his TM

. Shyface v. Sec’y of HHS 165 F.3d

1344, 1352 (Fed. Cir. 1999).

The Vaccine Act does not permit the und ersigned to rule for petitioner based on hi s claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa

13(a)(1). In this case

, petitioner’s medical records do not substantiate petitioner ’ s claim of

causation . Moreover, petitioner ha s not filed an expert medical opinion substantiating hi s claim

of causation

.

The undersigned GRANTS petitioner ’ s motion for a decision on the writ ten record and

DISMISSES this case for petitioner ’ s failure to prove by a preponderance of the evidence the

matters required in the petition . 42 U.S.C. § 300aa

- 13(a)(1).

CONCLUSION

This petition is DISMISSED . In the absence of a motion for review filed pursuant to

RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

February 2 7

, 201 5 s/Laura D. Millman

DATE Laura D. Millman

Special Master

2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either

separately or jointly, filing a notice renouncing the right to seek review.