# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1552V (Unpublished)

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AUDREY WALTON,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Special Master Katherine E. Oler

Filed: August 26, 2020

Petitioner’s Motion for a Decision; Dismissal of Petition; Vaccine Act.

James B. Wilmoth , Page Law, St. Louis, Mo., for Petitioner.
Sarah C. Duncan , U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION DISMISSING CAS E FOR INSUFFICIENT PROOF 1

On October 18, 2017, Audrey Walton (“Petitione r”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 2 alleging that she suffered from injuries, including brachial neuritis, resulting from the Fluvirin influenza vacci nation she received on October 22, 2014. Pet., ECF No. 1. Petitioner filed a statement of completion on February 26,

2018. ECF No. 10.

Petitioner filed medical records and physical therapy records in support of her claim. (Exs. 2-13). Petitioner also filed an expert report from Dr. Michael Sulzinski on January 22, 2020. Ex. 14, ECF No. 30.

1 Although this Decision has been fo rmally designated “not to be publis hed,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Ac t of 2002, 44 U.S.C. § 3501 (2012). This means the Decision will be availabl e to anyone with access to the internet . As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, th e parties may object to the decision’s inclusion of certain kinds of confidential information. Specifica lly, 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 substa nce and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would c onstitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decisi on in its present form will be available. Id.

2 The Vaccine Program comprises Part 2 of the Nati onal 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 hereaf ter will be to § 300aa of the Act (but will omit that statutory prefix).2 On April 17, 2019, Respondent filed his Rule 4(c) report, indicating he believed that this case was “not appropriate for co mpensation under the terms of the Act.” Resp.’s Rep. at 1, ECF. No. 20. Respondent also filed an expert repor t from Dr. Brain Callagha n on April 10, 2020. Ex. A, ECF No. 32.

Petitioner filed a motion to dismiss on A ugust 26, 2020, indicating that “an investigation of the [f]acts and science supporting her case has demonstrated to pe titioner that she will be unable to prove that she is entitled to compensation in the Vaccine Progr am.” Pet’r’s Mot., ECF No. 35
at 1. She further stated that “in these circumstan ces, to proceed further would be unreasonable and
would waste the resources of the Court, the [R]espondent, and the Vaccine Program.” Id.
Petitioner stated she “understands that a decisi on by the Special Master dismissing her petition will result in a judgment against her” and she “has been advised that such a judgment will end all of her rights in th e vaccine program.” Id. Petitioner also indicated th at she intends to reject the judgment and file a civil action. Id. at 2.

To receive compensation under the Vaccine Prog ram, a petitioner must prove either (1) that she suffered a “Table Injury” – i.e., an in jury falling within the Vaccine Injury Table – corresponding to her vaccina tion, or (2) that she suffered an inju ry that was actu ally caused by a
vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Moreover, unde r the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely on her claims alone. Rather , the petition must be supported by either medical records or by the opini on of a competent medical expert. § 13(a)(1). In this case, however, there is in sufficient 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).

Thus, this case is DISMISSED for insuffici ent proof. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler Special Master