In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1957V
Filed: December 13, 2018
Not to be Published
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LUCIANA CHAVES and RODERIGO *
CALLONI, as parents and natural *
guardians of A.C., *
*
Petitioners, *
* Numerous infant vaccines;
v. * infantile seizure disorder;
* no expert report; motion for
SECRETARY OF HEALTH * decision of dismissal
AND HUMAN SERVICES, *
*
Respondent. *
*
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Renée J. Gentry, Washington, DC, for petitioners.
Brittany A. Ditto, Washington, DC, for respondent.
MILLMAN, Special Master
DISMISSAL DECISION1
On December 15, 2017, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that numerous vaccinations administered
on December 22, 2014 to their daughter A.C. caused her infantile seizure disorder whose onset
was December 23, 2014. Pet. Preamble and at ¶13. However, medical records show that A.C.’s
infantile seizure disorder was due to a traumatic brain injury on January 5, 2015 at daycare.
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Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). 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. This means
the decision will be available to anyone with access to the Internet. When such a decision is filed,
petitioner has 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 banned categories
listed above, the special master shall redact such material from public access.
On December 13, 2018, petitioners filed a Motion for Decision dismissing their petition,
stating: “An investigation of the facts and science supporting [sic] has demonstrated to the
[p]etitioners that they will be unable to prove that they are entitled to compensation in the
Vaccine Program.” Mot. at 1. Petitioners add “to proceed any further would be unreasonable
and would waste the resources of the Court, the [r]espondent, and the Vaccine Program.” Id.
This is a causation in fact case. A.C.’s medical records do not support petitioners’
allegations by a preponderance of the evidence and they have failed to file a medical opinion
from an expert in support of their allegations. The undersigned finds petitioners have failed to
make a prima facie case and grants their motion for a decision DISMISSING this petition.
FACTS
On January 5, 2015, petitioner Ms. Chaves told Dr. Julian B. Orenstein at Shady Grove
Adventist Hospital that A.C.’s caretaker turned away from A.C. and found her unresponsive less
than one minute later. Med. recs. Ex. 6, at 6. Ms. Chaves noted A.C. was sick and vomiting
about one week earlier and she took A.C. to a doctor who found no significant problems.
A.C.’s symptoms resolved a few days later and A.C. had been healthy until January 5,
2015. A.C. had no known health problems. Id.
A.C.’s traumatic brain injury, following non-accidental trauma on January 5, 2015 at
daycare, resulted in unresponsiveness, acute subdural hematoma, closed head injury, focal
seizure, retinal hemorrhage of both eyes, and acute encephalopathy. Med. recs. Ex. 4, at 3.
Prior to this event, she was a healthy six-month-old infant. Id. During her first three days
of hospitalization, A.C. experienced seizures. Id. An initial MRI of A.C.’s cervical spine
evoked concern for ligamentous laxity injury of the cervical spine, which ultimately resolved.
Id. A.C. lost her previous developmental skills. Id. at 5.
Analysis of the Import of the Medical Records
From the medical records, A.C.’s non-accidental trauma caused her infantile seizure
disorder, closed head injury, acute subdural hematoma, unresponsiveness, retinal hemorrhage of
both eyes, and acute encephalopathy. Whether or not A.C.’s prior illness and vomiting were due
to her December 22, 2014 vaccinations, a medical doctor found A.C. did not have any significant
problems. Petitioner Ms. Chaves said A.C.’s prior illness and vomiting resolved a few days
later. Therefore, not only did A.C. not have sequelae of her alleged vaccine injury lasting more
than six months (42 U.S.C. § 300aa-11(c)(1)(D)(i)), but also a superseding factor, i.e., non-
accidental trauma, caused her infantile seizure disorder and other brain injuries.
The Federal Circuit in Capizzano v. Sec’y of HHS, 440 F.3d 1317, 1326 (Fed. Cir. 2006),
emphasized that the special masters are to evaluate seriously the opinions of petitioner’s treating
doctors since “treating physicians are likely to be in the best position to determine whether a
logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.”
See also Broekelschen v. Sec’y of HHS, 618 F.3d 1339, 1347 (Fed. Cir. 2010); Andreu v. Sec’y
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of HHS, 569 F.3d 1367, 1375 (Fed. Cir. 2009). A.C.’s treating doctor before A.C.’s non-
accidental trauma found she had no significant problems when she had sickness and vomiting
and these problems resolved after a few days. A.C.’s treating doctors after her non-accidental
trauma attributed all of her problems, including infantile seizure disorder, to her non-accidental
trauma.
DISCUSSION
To satisfy their burden of proving causation in fact, petitioners 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 of and effect showing that the vaccination was
the reason for the injury [,]” the logical sequence being supported
by a “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 petitioner’s
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.
Petitioners must show not only that but for A.C.’s vaccinations, she would not have
infantile seizure disorder, but also that A.C.’s vaccinations were a substantial factor in causing
her infantile seizure disorder. Shyface v. Sec’y of HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from ruling for
petitioners based solely on their allegations unsubstantiated by medical records or medical
opinion. The medical records do not support petitioners’ allegations. Petitioners have not filed a
medical expert opinion in support of their allegations.
Moreover, a factor unrelated to A.C.’s vaccinations appears to be the cause in fact of her
brain trauma. She suffered brain trauma at the babysitter’s place on January 5, 2015, which was
two weeks after her vaccinations.
The undersigned grants Petitioners’ Motion for Decision Dismissing the petition and
DISMISSES this petition for failure to make a prima facie case of causation of fact.
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CONCLUSION
This case is now DISMISSED. In the absence of a motion for review filed pursuant to
RCFC Appendix B, the Clerk of Court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: December 13, 2018 /s/ Laura D. Millman
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.
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