attorney of record for petitioner. Petitioner’s motion was granted on December 22, 2016 (ECF
No. 11).
On February 6, 2017, petitioner was ordered to file all outstanding medical records and a
statement of completion by March 6, 2017. Petitioner was given a one day extension of time to
comply with this Order, and medical records and a statement of completion were filed on March
7-8, 2017.
Respondent filed a Rule 4(c) Report on April 7, 2017, recommending against
compensation. The undersigned held a Rule 5 conference in the case on May 16, 2017, during
which time she shared her preliminary findings with the parties. During the Rule 5 conference,
the parties discussed the two issues raised by respondent in the Rule 4(c) Report: the lack of
support in the medical records for some of the alleged injuries, and the lack of proof that
M.M.P.’s rash caused a six-month residual injury. The undersigned gave her tentative finding
that several of petitioner’s alleged injuries were not supported by the medical records and that
there was no evidence in the record that M.M.P.’s injuries persisted for more than six months.
The undersigned noted that there was no diagnosis from a physician consistent with anaphylaxis,
and she stated that it appeared from the record that M.M.P.’s eczema pre-dated her receipt of the
vaccines on February 15, 2016. The undersigned ordered petitioner to file additional medical
records in support of her claims that M.M.P. suffered from photosensitivity, hypersensitivity of
her skin, muscle rigidity, irritability, and other alleged injuries. The undersigned allowed
petitioner 60 days to file these records.
After the Rule 5 conference, petitioner filed three motions for extension of time to file
medical records, all of which the undersigned granted. In total, the undersigned allowed
petitioner five months in which to file additional medical records. On October 3, 2017,
petitioner filed a statement of completion and an affidavit summarizing her daughter’s medical
history.
On October 5, 2017, the undersigned ordered petitioner to file an expert report by
December 5, 2017. The undersigned also warned that in light of the tentative findings during the
Rule 5 conference and the lack of additional medical records, the case could lack a reasonable
basis. Order dated October 5, 2017 (ECF No. 37).
On November 24, 2017, petitioner filed a motion for judgment on the administrative
record, more appropriately characterized as a motion to dismiss. Petitioner’s Motion (“Pet.
Mot.”) dated November 24, 2017 (ECF No. 38). Petitioner stated that after consulting with
several experts, she believes that she will be unable to prove that M.M.P. is entitled to
compensation in the Program and that to proceed further would be unreasonable. Id. at ¶¶ 8-9.
Petitioner also stated that she understands that a decision dismissing her petition will terminate
all of her rights in the Vaccine Program. Id. at ¶ 10. Furthermore, petitioner wishes to retain
their right to file a civil action in the future and thus intends to elect to reject the Vaccine
Program judgment. Id. at ¶ 12.
To receive compensation under the Program, petitioner must prove either: 1) that M.M.P.
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
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to a vaccination, or 2) that she 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 M.M.P. suffered a “Table Injury,” nor does petitioner allege that she suffered a
“Table Injury.” Further, the record does not contain any persuasive evidence indicating that
M.M.P.’s injury was caused by the vaccinations she received on February 15, 2016.
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. However, petitioner has not filed an expert report.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that M.M.P. suffered a “Table Injury” or that her injuries were caused-in-fact
by one or more of her vaccinations. Thus, this case is dismissed for insufficient proof. In the
absence of a motion for review, the Clerk of Court SHALL ENTER JUDGEMENT
accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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