# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 7

- 1860 V

( Unpublished )

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CONSTANCE CRABTREE

,

Petitioner

,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

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* Special Master Katherine E. Oler

Filed: May 19, 2020

Petitioner’s Motion for a Decision ;

Dismissal of Petition; Vaccine Act

.

Ren é e Gentry

, Va ccine Injury Clinic, George Washington University Law School, Washington,

DC

, for Petitioner.

Lisa Watts

, U.S. Dep artmen t of Justice, Washington, DC

, for Respondent.

DECISION DISMISSING PETITION 1

I. Procedural History

On December 1, 2017

, Constance Crabtree (“Petitioner”) f iled a petition for compensation

under the National Vaccine Injury Compensation Program

, 2 alleging that s he developed a Chiari

malformation as a result of the Fluvarin vaccination s he received on January 9 , 2015

. Pet

. at 1

- 2

, ECF No. 1

. Petitioner filed a statement of completion on March 23, 2018. ECF No. 15.

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted

on the Court of Federal Claims website in accordance with the E

- Government Act of 2002, 44 U.S.C. §

3501 (2012). This means the ruling will be available to anyone with acce ss to the internet . As provided

by 42 U.S.C. § 300aa

- 12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain

kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 constit ute a clearly unwarranted invasion of privacy.” Vaccine

R ule 18(b). Otherwise, the Decision in its present form will be available. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99

- 660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa

- 10

– 34 (2012)) (hereinafter

“Vaccine Act” or “the Act”). All subsequent references to se ctions of the Vaccine Act shall be to the

pertinent subparagraph of 42 U.S.C. § 300aa.2

On November 4, 2019, Petitioner filed an expert report from Dr. Noel Peterson (a

naturopathic doctor). Ex. 12, ECF No. 28. On April 14, 2020, Respondent filed a responsive

expert report from Dr. Michael Wilson (a neurologist), disputing Petitioner’s claim that she had a

Chiari malformation and that a Chiari malformation can develop after vaccination. See Ex. A,

E CF No. 31. I held a status conference with the parties on April 17, 2020 in which I informed

Petitioner I found Dr. Wilson’s expert report to be highly persuasive and do not think that

Petitioner has the injury she alleges. See Minute Entry on 4/17/2020; see also Scheduling Order

on 4/17/2020, ECF No. 32. During the status conference, I requested that Ms. Gentry inform her

client of my views regarding her case

. Scheduling Order on 4/17/2020, ECF No. 32. Ms. Gentry

requested 30 days to file a status report on how Petitioner would like to proceed. Id. I granted that

request. Id.

On May 18, 2020, Petitioner filed a status report informing the Court of her intent t o file a

Motion to Dismiss within the week. ECF No. 33. On May 19, 2020, Petitioner filed the instant

motion to dismiss her petition, st ating “An investigation of the facts and science supporting has

demonstrated to the Petitioner that she will be unable to prove that she is entitled to compensation

in the Vaccine Program.” Pet’r’s Mot. at 1, ECF No. 34.

II. Conclusion

To receive compensation in the Vaccine Program, a petitio ner must prove either (1) that

she suffered a “Table Injury”

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

– corresponding to her vaccination, or (2) that she suffered an injury that was actually caused by a

vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Moreover, u nder the Vaccin e Ac t, a petitioner may not

receive a Vaccine P rogram award based solely on her claims alone. Rather, the petition must be

supported by either medical records or by the opinion of a competent medical expert

. § 13(a)(1).

In this case, however, there is i nsufficient evidence in the record for Petitioner to meet her burden

of proof. Petitioner’s claim therefore cannot succeed and

, in accordance with her motion, must be

dismissed. § 11(c)(1)(A).

As such, IT IS ORDERED THAT

,

Petitioner’s Motion for Decision Dismissing Her Petition is GRANTED and the petition

is hereby DISMISSED . The Clerk shall enter judgment accordingly.

Any questions regarding this Order may be directed to my law clerk, Sydney Lee, by

telephone at 202

- 357

- 6347, or by email at Sydney

_ Lee@cfc.uscourts.gov

.

IT IS SO ORDERED.

s / Katherine E. Ole r

Katherine E. Oler

Special Master