In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1757V
Filed: March 16, 2021
UNPUBLISHED
BRANDON RICHARDSON, Special Master Horner
Petitioner,
v. Petitioner’s Motion for Decision
Dismissing Petition; significant
SECRETARY OF HEALTH AND aggravation; Influenza (flu)
HUMAN SERVICES, vaccine; Bell’s Palsy
Respondent.
Jessica W. Hayes, Murray Law Firm, New Orleans, LA, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION 1
On November 13, 2018, petitioner filed a claim under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he suffered
aggravation of his Bell’s Palsy due to an adverse reaction to an influenza vaccination
that he received on November 11, 2015. (ECF No. 1.) On January 29, 2020,
respondent filed his Rule 4 report, recommending against compensation. (ECF No. 30.)
On May 13, 2020, a status conference was held where I explained why petitioner faced
significant challenges in carrying his burden of proof. (ECF No. 32, p. 2.) I also
questioned the reasonable basis of petitioner’s claim going forward given the existing
record and encouraged petitioner to consider dismissing his claim. (Id. at 3.) Petitioner
filed a status report on September 11, 2020 indicating that he intended to file additional
evidence in the form of expert reports and witness affidavits documenting his injury.
(ECF No. 36.) Petitioner was given additional time to file this evidence.
1
Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
However, on March 15, 2021, petitioner filed a Motion for a Decision Dismissing
his Petition. (ECF No. 41.) Petitioner indicated that “[a]n investigation into the facts as
well as the relevant medical and scientific evidence supporting the case has
demonstrated to Petitioner that he will be unable to prove entitlement to compensation
through the National Vaccine Injury Compensation Program,” and that “further
proceedings would be unreasonable and a waste of the resources of the Court, the
parties, and the National Vaccine Injury Compensation Program” (Id. at 1.) Petitioner
further stated that “[p]etitioner understands that a decision by the Special Master
dismissing the petition will result in a judgment against him. [Petitioner] has been
advised that the entry of a judgment against him will end all of his rights in the National
Vaccine Injury Compensation Program.” (Id. at 2.)
To receive compensation in the Vaccine Program, petitioner must prove either
(1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table
– corresponding to a covered vaccine, or (2) that he suffered an injury that was actually
caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy his burden of
proving causation in fact, petitioner must show 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 Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). Where a petitioner is seeking to prove that a vaccination aggravated a pre-
existing injury, petitioners must also establish the vaccinee’s condition prior to the
administration of the vaccine, the vaccinee’s current condition, and whether the
vaccinee’s current condition constitutes a “significant aggravation” of the condition prior
to the vaccination. See Loving v. Sec’y of Health & Human Servs., 86 Fed. Cl. 135, 144
(Fed. Cl. 2009) (combining the first three Whitecotton factors for claims regarding
aggravation of a Table injury with the three Althen factors for off table injury claims to
create a six-part test for off-Table aggravation claims); see also W.C. v. Sec’y of Health
& Human Servs., 704 F.3d 1352, 1357 (Fed. Cir. 2013)(applying the six-part Loving
test.). In all events, the Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the
undersigned from ruling for petitioner based solely on his allegations unsubstantiated by
medical records or medical opinion.
Petitioner’s medical records do not support his allegations by a preponderance of
the evidence and he did not file a medical opinion from an expert in support of his
allegations. Accordingly, the undersigned GRANTS petitioner’s Motion for a Decision
Dismissing the Petition and DISMISSES this petition for failure to establish a prima facie
case of entitlement to compensation.
2
CONCLUSION
This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision. 2
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
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