# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 31, 2022

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

MIS AHEL AVILA

, * No. 1 9

- 1058 V

*

Petitioner, * Special Master Sanders

v. *

*

SECRETARY OF HEALTH * Dismissal; Insufficient Proof; Influenza

AND HUMAN SERVICES, * ( “ Flu ” ) Vaccine; Gu illain

- Barr é Syndrom e

* ( “ GBS ” ).

Respondent. *

*

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

Michael G. McLaren

, Black McLaren , et al., PC

, Memphis, TN , for Petitioner.

Ju li a M. Colliso n , U.S. Department of Justice, Washington, DC, for Respondent.

D ISMISSAL 1

On July 23 , 2019

, Misahel Avila (“Petitioner”) filed a petition for compensation under the

National Vaccine Injury Compensation Program 2 (“Vaccine Program” or “Program”). 42 U.S.C.

§ 300aa

- 10 to 34 (2012). Petitioner alleged that he suffered from Guillain

- Barr é S yndrome

( “ GBS ” ) due to an influenza ( “ flu ” ) vaccine administered on August 24, 2016. Pet. at 1, ECF No.

1. The information in the record, however, does not show entitlement to an award under the

Program.

On January 12, 2022 , Petitioner filed a motion for a decision dismissing h is petition. ECF

No. 44

. In h is motion, Petitioner stated that he “ has been unable to secu re evidence to prove

entitlement to compensation in th e [V]accine [P ]r ogram. ” Id. ¶ 1 . H e continued, “ [i] n these

circumstances, to proceed further would be unreasonable and would waste the resources of the

[ C ] ourt, the [ r ] espondent and the [ V ] accine [ P ] rogram.” Id. ¶ 2. Respondent had no objection to

Petitioner’s motion. Id. ¶ 5

.

1 This D ecision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E

Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services). This means the Decisio n will be available to anyone with access to the Internet . In

accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information

that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with t he rule requirement, a motion for redaction

must include a proposed redacted decision. If, upon review, the I agree that the identified material fits within the

requirements of that provision, such material will be deleted from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755 (“the Vaccine Act” or “Act”).

Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42

U.S.C. § 300aa (2012).2

To receive com pensation under the Program, Petitioner must prove either (1) that he

suffered a “Table Injury”

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

— corresponding

to the vaccination, or (2) that he suffered an injury that was actually caused by a vaccin e. See §§

13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that Petitioner

suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Petitioner’s

alleged injur ies w ere caused by the flu vaccine

.

Under the Act, petitioners may not be given a Program award based solely on their claims

alone. Rather, the petition must be supported by medical records or the opinion of a competent

physician. § 13(a)(1). In this c ase, the medical records are insufficient to prove Petitioner’s claim,

and at this time, Petitioner has not filed a supportive opinion from an expert witness. Therefore,

this case must be dismissed for insufficient proof. The Clerk shall enter judgment

acc ordingly

. 3

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders

Special Master

3 Pursuant t o Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing

the right to seek review.