In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-11V
February 27, 2015
Not to be Published
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WYATT TANNER, *
*
Petitioner, *
*
v. * Influenza (“flu”) vaccine; transverse
* myelitis (“TM”); less than one day onset;
SECRETARY OF HEALTH * no expert witness; petitioner’s motion
AND HUMAN SERVICES, * for decision on written record; dismissed
*
Respondent. *
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Isaiah R. Kalinowski, Washington, DC, for petitioner.
Jennifer L. Reynaud, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
On January 5, 2015, petitioner sued under the National Childhood Vaccine Injury Act, 42
U.S.C. §§ 300aa-10–34 (2006), alleging that influenza (“flu”) vaccine caused his transverse
myelitis (“TM”). Although the petition is unspecific as to the onset of petitioner’s TM after
vaccination, medical records show the onset was the same day as vaccination.
1
Because this decision contains a reasoned explanation for the special master’s action in this
case, the special master 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, 116
Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special
masters will be made available to the public unless they contain trade secrets or commercial or
financial information that is privileged and confidential, or medical or similar information whose
disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is
filed, petitioners have 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits
within the categories listed above, the special master shall redact such material from public
access.
On February 10, 2015, the undersigned held the first telephonic status conference with
counsel to discuss the difficulty of petitioner proving that flu vaccine could cause TM on the
same day as vaccination.
On February 27, 2015, petitioner filed a Motion for a Decision on the Written Record,
stating, “Petitioner does not deem it worthwhile to pursue prosecution of the Petition all the way
to a hearing with expert witnesses, and believes the Court has sufficient information to rule on
the issue of causation, pursuant to Vaccine Rule 8.” Pet’r’s Mot. ¶ 5.
The undersigned GRANTS petitioner’s motion and DISMISSES this case for failure to
prove that flu vaccine caused petitioner’s TM, which began on the day of vaccination.
FACTS
Petitioner was born on June 6, 1980.
On September 6, 2012, he received flu vaccine. Med. recs. Ex. 1, at 2.
On September 9, 2012, he went to Mt. Carmel East Hospital where he said since
Thursday (September 6, 2012), he had “generalized body aches with urinary frequency,
abdominal pain, malaise, sensitive skin, and fatigue.” Med. recs. Ex. 3, at 641.
On September 12, 2012, he went to Mt. Carmel East Hospital where he gave a history
that on Thursday (September 6, 2012), petitioner “received his flu vaccine and later on in the
day, he had some tingling and restlessness of his legs.” Med. recs. Ex. 4, at 50.
During petitioner’s hospitalization at Mt. Carmel East, which lasted from September 14
to 21, 2012, he was diagnosed with transverse myelitis. Id. at 36.
DISCUSSION
To satisfy his burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y
of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause and effect showing that the vaccination was the
reason for the injury[,]” the logical sequence being supported by a
2
“reputable medical or scientific explanation[,]” i.e., “evidence in
the form of scientific studies or expert medical testimony[.]”
418 F.3d at 1278.
Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for flu vaccine, he would not have TM, but also
that the vaccine was a substantial factor in causing his TM. Shyface v. Sec’y of HHS 165 F.3d
1344, 1352 (Fed. Cir. 1999).
The Vaccine Act does not permit the undersigned to rule for petitioner based on his
claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). In this case, petitioner’s medical records do not substantiate petitioner’s claim of
causation. Moreover, petitioner has not filed an expert medical opinion substantiating his claim
of causation.
The undersigned GRANTS petitioner’s motion for a decision on the written record and
DISMISSES this case for petitioner’s failure to prove by a preponderance of the evidence the
matters required in the petition. 42 U.S.C. § 300aa-13(a)(1).
CONCLUSION
This petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
February 27, 2015 s/Laura D. Millman
DATE Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either
separately or jointly, filing a notice renouncing the right to seek review.
3