# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

Filed: October 7, 2019

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

MATTHEW MCDERMOTT, * UNPUBL ISHED

*

Petitioner, * No.17

- 1401V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Motion for Dismissal Decision;

AND HUMAN SERVICES, * Influenza ( “ Flu ” ); Optical Neuritis;

* Anterior Isc hemic O ptical

Respondent. * Neuropathy.

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

Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, N Y , for petitioner.

Mallori B. Openchowski, U.S. Depa rtment of Justice, Washington, D.C., for respondent

.

DECISION 1

On October 2, 2017, Matthew McDermott ( “ petitioner ” ) filed a petitioner in the National

Vaccine Injury Compensation Pr ogram. 2 Petition (ECF No. 1) Petitioner alleged that he suffe red

optic neuritis and anterior ischemic optical neuropathy as a result o f receiving a n influenza

( “ flu ” ) vaccine on October 3, 2014. Petition at Pream ble

. The information in the rec ord does not

establish entitlement to compensation.

On October 7, 201 9, petitioner filed a motion for a decision dismissing the petition

pur suant to Rule 21(a). Pet itioner ’ s Motion ( “ Pet. Mot. ” ) (ECF No. 37). Petitio ner avers that

after an inv estigation of the facts and science supporting h is case, she will be unable to prove that

he is entitled to compe nsation in the Vaccine Program. Id. at ¶ 1. Petitioner recognizes that to

proceed further would be un reasonable and would waste the resources of the Court, the

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. This means the

opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s

website, eac h party has 14 days to file a motion requesting 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 constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the

decision.” Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the

court’s website without any changes. Id.

2 The Pro gram comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 10 et

seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §300aa

of the Act.2

respondent and the Vaccine Program. Id. at ¶ 2. Petitioner understands that dismissing the

petition that a judgment will end petitioner ’ s rights in the Vaccine program. Id. at ¶ 3. Petitioner

understand that he may apply for fees and costs once the case is dismissed and judgment is

entered against him. Id. at ¶ 4 . Respondent expressly rese rves the right to q uestion the good

faith and rea sonable basis of this claim and to oppose, if appropriate, petit ion er ’ s application fo r

fees and costs. Id. Respond ent does not otherwise o ppose this motion. Petitioner intends to

protect h is rights to file a civil action in the futur e. Therefore, pursuant to § 300aa

- 21(a)(2),

petitioner intends to elect to reject the Vaccine Program judgment and elect to file a civil action.

Id. at ¶ 7

.

To receive compensation in the Vaccine Program, petitioner has the burden of proving

either: (1) that petitioner suffered a “Table Injury,” i.e. an injury beginning with a specified

period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a

“Table injury”) or (2) that petitioner suffered an injury that was ca used

- in

- fact by a covered

vaccine. §§ 13(a)(1)(A); 11(c)(1). Moreover, under the Vaccine Act, the Vaccine Program may

not award compensation based on petitioner’s claims alone. Rather, petitioner must support the

claim with either medical records or the opinion of a competent medical expert. §13(a)(1). In

this case, petitioner has not alleged nor does the record reflect a Table injury. With regard to an

off

- Table injury, petitioner has not provided sufficient medical records or expert opinion(s)

which support a finding of entitlement. Accordingly, petitioner has not met h is burden of proof.

T hus, petitione r ’ s motion is GRANTED. This matter is DIMISSED for insuff icient

proof. The Clerk of the Court shall enter judgment accordingly. 3

IT IS SO ORDERED.

s/Thomas L. Gowen

Tho mas L. G owen

Special Master

3 Entry of judgment is ex pedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule

11(a).