1 In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 8

- 884 V

(not to be published)

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

KELSEY REED

, * Filed: September 23 , 2019

*

Petitioner, *

*

v. * Dismissal; Lack of Expert

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

Dani e l Henry Pfeifer

, Pfeifer, Morgan & Stes iak

, IN for Petitioner.

Jeff rey R. Spr ague , U.S. Dep’t of Justice, Washington, D.C. for Respondent.

DECISION DISMISSING CASE 1

On Jun e 21 , 201 8

, Kelsey Reed filed a petition in the National Vaccine Injury

Compensation Program

. 2 ( ECF No. 1 ) . Petitioner alleged that the influenza vaccine she received

on November 9 , 201 6 , caused her to develop transverse myelitis

. Id. at 1

.

On November 6

, 2016, Respondent filed his Rule 4(c) Report, stating his view that

compensation was not appropriate in this case. ( ECF No. 1 4) at 6

– 7

. Specifically , Respondent

argued th at Petitioner had not show n complications from the vaccine lasting more than six months

after receiving it ; th us, P e titioner had not satisfied Section 300aa

- 11(c) (1)(D). S ee i d. The same

1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the

Court of Federal Claims’s website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012)). This

means that the Decision will be available to anyone with access 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 h as 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 d isclosure of which would constitute a clearly

unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public

in its current form. Id

.

2 The Vaccine Program comprises Part 2 of the National 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 hereafter will be to § 300 aa of the Act (but will omit that statutory prefix).2

day, Respondent filed a motion to dismiss the case for the same reasons discussed in his Rule 4 (c)

Report . (ECF No. 15). In response, Pet itioner filed additional medical records , (ECF No. 17), and

responded to the M otion to D ismiss. ( E CF No. 20)

. Reacting

, Respondent withdrew his Motion to

Dismiss but stated that he still wanted to defend the case. (ECF No. 22).

Next, aft er a status conference on February 2 8 , 2 019

, Petitioner was directed to file her

Expert Report on or before May 31, 2019. Over the next several mon ths P e titioner filed three

motions to extend the deadline for filing her Expert Report. (ECF No s . 24 , 25, & 27 )

. A fter the

second motion

, I noted that Petitioner will have had over five months to file an E xpert R eport

, and

therefore no further extensions of time would be granted. After t he third motion

, I directed

Petitioner to file her overdue Expert Report or request dismissal of her cla im

. See (ECF No. 27)

(deadline of S eptember 13, 2019)

.

O n S eptem ber 12, 2019, Petitioner filed a Motion to Dismiss her Petition. (ECF No. 29).

Therein, Petitioner explained that she had sough t an expert opinion re garding her case but was

unable to obtain one. See id. Petition er also alluded that her inability to obtain an expert opinion

caused her to file the Motion

. See id

.

To receive compensation under the Vaccine Program, a petitioner must prove either : (1)

that he suffered a “Table Injury”

— i.e., an injury falling within the Vaccine Injury Table

— corresponding to one of his vaccinati ons ; or (2) that he suffered an injury that was actually caused

by a vaccine. See §§ 300aa

- 13(a)(1)(A) and 11(c)(1). An examination of the record, however,

does not uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does

not con tain a medical expert ’s opinion or any other persuasive evidence indicating that Petitioner ’s

injuries were caused by the vacci ne received.

Special masters may require such evidence “as may be reasonable or necessary.” § 300aa

12(d)(3)(B)(ii). In addition, under the Vaccine Act, a petitioner may not receive a Vaccine Program

award based solely on his claims alone. Rather, the petit ion must be supported by either medical

records or by the opinion of a competent physician. See § 300aa

- 13(a)(1). In this case, there is

insufficient evidence in the record for Petitioner to meet her burden of proof, and she has not

offered an expert opinion s upporting her claim

. Therefore, Petitioner's claim cannot succeed and

must be dismissed. See § 300aa

- 11(c)(1)(A).3

Petitioner ’ s M otion to D ismiss is therefore GRANTED . The Clerk shall enter judgment

accordingly. 3

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite judgment by filing a joint notice renouncing their right to

se ek review.