Davis v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 23, 2015

************************* UNPUBLISHED
JEFF DAVIS and CYNTHIA DAVIS, * Case No. 14-276
Legal Representatives of a Minor Child, *
P.D., * Special Master Dorsey
*
Petitioners, *
*
v. * Petitioners’ Motion for Dismissal
* Decision; Insufficient Proof of
SECRETARY OF HEALTH * Causation; Vaccine Act Entitlement;
AND HUMAN SERVICES, * Rotavirus Vaccines; Intussception;
* Hepatic Flexure, Appendicitis.
Respondent. *
*
*************************

Jeremy Zivko Soso, Lambert Firm, PLC, for Petitioners.
Lara Ann Englund, United States Department of Justice, Washington, DC, for Respondent.

DECISION1

On April 9, 2014, Jeff and Cynthia Davis (“petitioners”) filed a petition for compensation
under the National Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine
Act”), alleging that their daughter, P.D., suffered intussception, hepatic flexure, and appendicitis,
resulting from rotavirus vaccines that she received on May 10, 2011, July 8, 2011, and
September 16, 2011. Petition at 1.

Respondent filed the Rule 4(c) report on October 15, 2014, stating that this case was not
appropriate for compensation. Respondent stated that petitioners failed to proffer a medical

1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 and note (2006)). 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 the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be deleted from public access.
1
opinion or theory sufficient to establish a logical cause and effect relationship between P.D.’s
vaccinations and her injury, and thus petitioners have failed to demonstrate their entitlement to
compensation.

On February 13, 2015, petitioners filed a motion for a dismissal decision. In their
motion, petitioners state that “an investigation of the facts and science supporting this case has
demonstrated to Petitioners that they will be unable to prove that they are entitled to
compensation in the Vaccine Program.” Motion at 1. Petitioners states that they understand that
a decision by the Special Master will result in a judgment against them, and that such a judgment
will end all rights in the Vaccine Program. Id. Respondent has no objection to petitioners’
motion.2

To receive compensation under the Vaccine Act, petitioners must prove either 1) that
P.D. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of her vaccinations, or 2) that P.D. suffered an injury that was actually
caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the
record did not uncover any evidence that P.D. suffered a “Table Injury.” Further, the record does
not contain a medical expert’s opinion or any other persuasive evidence indicating that P.D.’s
injuries were caused by a vaccination.

Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioners, however, have not offered a medical expert opinion.

Therefore, the only alternative remains to DENY this petition. Thus, this case is
dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall
enter judgment accordingly.

IT IS SO ORDERED.

/s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master

2
Respondent was contacted on February 23, 2015, via email by the undersigned’s law clerk, and
respondent confirmed that she has no objection to the special master issuing a decision
dismissing the petition.
2