In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ALFA DIA, *
* No. 14-954
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: October 24, 2016
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Influenza (“flu”) vaccine;
* compensation.
Respondent. *
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Braden A. Blumenstiel, Blumenstiel Falvo, LLC, Dublin, OH, for petitioner.
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Alfa Dia filed a petition under the National Childhood Vaccine Injury Act,
42 U.S.C. §300aa—10 et seq., on October 6, 2014. The petition alleged that Mr.
Dia suffered injuries after he received the influenza vaccine on October 2, 2012.
See Petition, filed Oct. 6, 2014. The information in the record, however, does not
show entitlement to an award under the Program.
I. Procedural History
On October 6, 2014, Mr. Dia filed a petition seeking compensation for
injuries he sustained following the receipt of the influenza vaccine administered on
October 6, 2012. Mr. Dia filed an amended petition on July 9, 2015. The amended
petition alleges that the vaccine administration caused Mr. Dia to suffer the
1
The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
following symptoms: rapid heartbeat, fever, chills, sweating, headaches, joint pain,
and numbness, weakness and tingling in his lower extremities and eventually his
entire body.
On August 12, 2015, respondent filed her Rule 4 report. She concluded that
petitioners failed to demonstrate, by a preponderance of the evidence, that Mr. Dia
had sustained an injury recognized within the criteria of the Vaccine Injury Table.
On October 26, 2015, petitioner filed an expert report by Phillip C. DeMio,
M.D, which was approximately one and a half pages. Exhibit 49. Dr. DeMio’s
report, however, is not persuasive for many reasons. A key omission in Dr.
DeMio’s report is that he simply asserts that vaccines “can & do lead to entities
including peripheral neuropathies.” Exhibit 49 at 1. Within the four corners of
this report, he does not propose any theory that would satisfy the first prong of
Althen. In addition, although Dr. DeMio’s background is in autism, he did not
explain his qualifications to opine about peripheral neuropathy. These concerns
were raised with the petitioner during a status conference held on
_______________.
On February 2, 2016, petitioner stated he needed time to undergo QSART
testing and a skin biopsy for intra-epidermal nerve fiber counting to facilitate an
expert report. Mr. Dia was tested on March 29, 2016, and the test results were
normal. Exhibit 53 at 1.2
During a status conference held on September 7, 2016, petitioner’s counsel
requested time to confer with petitioner on how he would like to proceed with the
case. On October 5, 2016, petitioner filed a motion entitled Motion for Ruling on
the Record.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that the vaccinee suffered a “Table
Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to
one of the vaccinee’s vaccinations, or 2) that the vaccinee 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 Mr. Dia
2
This report also indicates that an associated diagnosis is “hereditary and idiopathic peripheral neuropathy.” Exhibit
53 at 6. In light of the normal test results, it is unclear whether this diagnosis was rendered before or after the
testing.
2
suffered a “Table Injury.” Further, the record does not contain other persuasive
evidence indicating that Mr. Dia suffered any injury.
Under the Act, a petitioner may not be given a Program award based solely
on the petitioner’s claims alone. 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 do not support petitioner’s claim, a
medical opinion must be offered in support. Though a medical opinion has been
offered, it is not persuasive.
Accordingly, it is clear from the record in this case that petitioner has failed
to demonstrate that he suffered a “Table Injury,” or any injury.
Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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