 




                         In the United States Court of Federal Claims
                                                          OFFICE OF SPECIAL MASTERS
                                                                    No. 10-668
                                                               (Not to be published)


*************************
V.R, by her mother             *                                              Filed: November 24, 2014
EVGENIYA KIM,                  *
                               *
                   Petitioner, *                                              Petitioner’s Motion for a Decision
       v.                      *                                              Dismissing the Petition; Vaccine Act
                               *                                              Entitlement; Denial Without Hearing
SECRETARY OF HEALTH            *
AND HUMAN SERVICES,            *
                               *
                   Respondent. *
                               *
*************************

Edward David, Edward David & Associates, LLC, Roseland, NJ, for Petitioner.

Ann Martin, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

                                                               DECISION DISMISSING CASE1

       On October 4, 2010, Evgeniya Kim filed a petition on behalf of V.R., her minor child,
seeking compensation under the National Vaccine Injury Compensation Program (the
“Program”).2 Petitioner alleged that V.R. suffered from B. pertussis infection which left her in a
permanent coma, with brain damage and in an unresponsive state, and would never permit her to
develop normally as a result of receiving the DTAP, POLIO, HIB, HBV, and PCV7 vaccinations
on July 28, 2009.

                                                            
1
  Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of
the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
§ 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the
public. Id.
2
  The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. ' 300aa-10 – 34 (2006))
[hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act.


 
 


        During a status conference in this case that was held on September 23, 2014, the parties
discussed the Petitioner’s potential difficulty in proceeding further with this case. Order (ECF
No. 69). The matter was stayed in April 2013 pending resolution of a criminal case involving
V.R.’s father (Evgeniya Kim’s spouse) who was appealing his conviction, following a guilty
plea, for second-degree aggravated assault in connection with V.R.’s injuries. In light of the
recent disposition of that appeal (on June 10, 2014), affirming the conviction and remanding the
case for resentencing, Petitioner requested some time to confer with Respondent in deciding
whether she would withdraw her case. Order (ECF No. 69). She has now done so. Motion for a
Decision Dismissing Petition (ECF No. 70). The motion indicates that “[a]n investigation of the
facts and science supporting her case has demonstrated to [P]etitioner that she will be unable to
prove that she is entitled to compensation in the Vaccine Program.” Id. at 1. That motion also
indicated that Respondent was notified it in advance of filing and expressed no opposition to the
motion. Id. at 1-2.

        To receive compensation under the Program, a petitioner must prove either (1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of his vaccinations, or (2) that he suffered an injury that was actually caused by a vaccine.
See §§13(a)(1)(A) and 11(c)(1). An examination of the record, however, does not uncover any
evidence that V.R. suffered a “Table Injury.” Further, the record does not contain any persuasive
evidence establishing that the alleged injury that V.R. experienced could have been caused by the
vaccinations received, and the related criminal action suggests more likely causes for V.R.’s
injuries and subsequent death.

        Under the Vaccine Act, a petitioner may not receive a Program award based solely on his
claims alone. Rather, the petition must be supported by either medical records or by the opinion
of a competent physician. §13(a)(1). In this case, there is insufficient evidence in the record for
Petitioner to meet her burden of proof. Petitioner’s claim therefore cannot succeed and must be
dismissed. §11(c)(1)(A).

      Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.

       IT IS SO ORDERED.

                                                             /s/ Brian H. Corcoran
                                                              Brian H. Corcoran
                                                              Special Master
 




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