# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 8, 2018

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

DONATA TINA BUSSA, *

e xecutor of the estate of * UNPUBLISHED

ANDREW BUSSA, deceased

, *

* No. 15

- 20 2 V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Petitioner’s Motion for Dismissal;

AND HUMAN SERVICES, * In sufficient Proof; In fluenza (“Flu”)

* Vaccination; Guillain

- Barré

Respondent. * Syndrome (“GBS”) ; Alternative

* * * * * * * * * * * * * * * * * * * Causes; Severity Requirement.

Ronald C. Homer , Conway, Homer, P.C., Boston, MA, for petitioner.

Adriana R. Teitel , United States Department of Justice, Washington, DC for respondent.

DECISION ON ENTITLEMENT 1

On March 2, 2015, Andrew Bussa (“Mr. Bussa”) filed a claim in the National Vaccine

Injury Compensation Program. 2 He alleged that as a result of receiving an influenza (“flu”)

vaccination on October 24, 2013, he developed Guillain

- Barré Syndrome (“GBS”), with residual

effects lasting for more than six months. Petition (ECF No. 1); Amended Petition (ECF No. 21).

A fter Mr. Bussa passed away on February 1, 2016

, Ms. Donata Tina Bussa, as executor of his

estate

, was substituted as the petitioner

. See Order (ECF No . 46).

On June 6, 2018, petitioner filed a motion for a decision dismissing t his claim.

Petitioner’s Mo tion (ECF No. 68 ). The motion provides that petitioner has been unable to secure

further evidence required by the Court to prove entitlement to compensation in the Vaccine

Program. Petitioner is aware that a decision by the special master dismissing the petition will

1 P ursuant to the E

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

reasoned explanation for the action in this case, I intend 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. Before the decision

is posted on the court’s website, each 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 decision

will be posted on the court’s website without any changes. Id.

2 The Pr ogram 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

result in a judgment against petitioner and will end all of petitioner’ s rights in the Vaccine

Program. Id. Petitioner intend s to protect her rights to file a civil action in the future.

Therefore, pursuant to 42 U.S.C. § 300aa

- 21(a)(2 ), petitioner intends to elect to reject the

Vaccine Program judgment and to file a civil action. Id. at 2. This matter is now ripe for review.

Under the Vaccine Act, the Program may not award compensation solely based on a

petitioner’s own claims. Rat her, a petitioner must support his claim with either medical records

or the opinion of a competent physician. § 13(a)(1). Several challenges to petitioner’s claim

have been apparent over the past three years it has been pending . The first challenge would be to

establish whether Mr. Bussa actually developed GBS, considering that his symptoms had a rapid

onset and then improved without receipt of the usual treatments for GBS, namely, intravenous

immunoglobulin (“IVIG”) and/ or pl asma exchange. Mr. Bussa’s symptoms may be alternately

explained by a posterior circulation stroke or a transient ischemic attack (“TIA”). If petitioner

established that Mr. Bussa did have GBS, a further challenge would be to establish that he

experience d the residual effects of GBS for at least six months. This would necessitate

addressing whether Mr. Bussa’s increased fatigue and weakness were more likely related to his

numerous preexisting comorbidities. However, t he medical records reflect that Mr. Bussa

com plained about dizziness, weakness, and fatigue prior to receiving the vaccination.

In this case, there is insufficient evidence by way of either medical records or expert

opinion to carry petitioner ’ s burden of proof. Petitioner ’ s claim therefore cannot succeed and

must be dismissed. § 11 (c) (1) (A).

Thus, this case is dismissed for insufficient proof

. The Clerk of the Court shall enter

judgment accordingly.

IT IS SO ORDERED.

s/ Thomas L. Gowen

Thomas L. Gowen

Special Master