                                                                        REISSUED FOR PUBLICATION

                             .R~GI!~. L
                                                                                     NOV 27 2017
                                                                                        OSM
                                                                            U.S. COURT OF FEDERAL CLAIMS
     3Jn tbe Wntteb ~tateS' C!Court of jfeberal C!ClatmS'
                               OFFICE OF SPECIAL MASTERS
                                    Filed: October 31, 20 17


*** ** ** ** ******* ** ** ** ** *                   UNPUBLISHED
                                                                                     FILED
A.M., a Minor, by Parents and                 *                                     OCT 3 1 2n17
Natural Guardians: SEAN MILLER                *
and APRIL MILLER,                             *                                    U.S . COURT OF
                                                                                  FEDERAL CLAIMS
                                              *      No. 16-883V
               Petitioners,                   *
                                              *
V.                                            *      Chief Special Master Dorsey
                                              *
SECRETARY OF HEALTH                           *
AND HUMAN SERVICES,                           *      Autism Spectrum Disorder ("ASD");
                                              *      Skin Rashes; Hepatitis; Haemophilus.
               Respondent.                    *      Influenza Type B ("Hib"); Prevnar;
                                              *      No Reasonable Basis.
*************************
Mr. Sean and Mrs. April Miller, prose.
Ms. Ann Martin, U.S. Department of Justice, Washington, D.C., for respondent.

                              DECISION DISMISSING PETITION 1

     I.    Introduction

        On July 25, 2016, Mr. Sean and Mrs. April Miller ("petitioners") filed a petition on behalf
of their minor daughter, A.M., pursuant to the National Vaccine Injury Compensation Program,
42 U.S.C. §§ 300aa-1 to 34 (2012). Petitioners allege that A.M. suffered skin rashes and autism
spectrum disorder(" ASD") as a result of vaccinations she received on June 18, 2014,2 and August
21, 2014. Petition at 1. Petitioners filed medical records as Exhibits 1-9 with their petition.

1
  Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims'
website, in accordance with the E-Government Act of2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-l 2(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
she will delete such material from public access.

2 Respondent correctly notes in his Rule 4(c) Report that the immunization record is slightly
inconsistent with the other medical records. The immunization record reflects that A.M.
    II.    Factual and Procedural History

         The initial status conference was held on August 25, 2016. During the status conference,
petitioners were encouraged to find an attorney to represent them in their case and were ordered
to file additional medical records in support of their claim. Order dated August 29, 2016 (ECF
No. 7). Petitioners filed additional medical records on September 29, 2016. 3 Petitioners were
unable to find an attorney to represent them, and respondent was ordered to file a Rule 4(c) Report,
which he did on January 26, 2017. On February 23, 2017, petitioners filed a memorandum of
objections in response to respondent's report.

        A Rule 5 conference was held on February 23, 2017, during which the undersigned
reviewed respondent's Rule 4(c) Report, petitioners' memorandum of objections to respondent's
Rule 4(c) Report, and shared her preliminary findings. She advised that there does not appear to
be a reasonable basis to proceed with the case, and an Order to Show Cause was issued. The
Order to Show Cause allowed petitioners until April 28, 2017, to file an expert report in their
case. Order to Show Cause dated Feb. 27, 2017 (ECF No. 15).

        On March 27, 2017, petitioners requested an extension until October 2017 to file an
expert report, in compliance with the undersigned's February 27, 2017 Order to Show Cause.
Petitioners stated that they inquired at several clinics and hospitals near their home in hopes of
retaining an expert. When these attempts proved unsuccessful, petitioners set up an
appointment for A.M. at Children's Hospital in Omaha, Nebraska. Another status conference
was held on April 6, 2017, to discuss petitioners' motion for extension. The undersigned
granted petitioners' motion and ordered them to file a status report by Friday, October 20, 2017,
updating the Court as to the diagnosis and testing results from A.M.'s medical appointment at the
Children's Hospital in Omaha.

        On September 5, 2017, petitioners filed a status report containing information regarding
A.M.'s appointments at the Children's Hospital of Omaha during the summer of 2017.
Petitioners stated that during A.M. 's appointment at the Children's Hospital in Omaha on July
14, 2017, she underwent medical testing. Petitioner filed documentation of this visit as Exhibit
A. On July 31, 2017, A.M. underwent an MRI of the brain, and petitioners filed her MRI results
as Exhibit B. Petitioners stated that A.M. was diagnosed with gliosis and seizure-like activity
on August 1, 2017. Petitioners also filed documentation from the vaccine manufacturers Glaxo
Smith Cline and Merck regarding the ingredients in the DTaP, MMR, and V aricella vaccinations.

      On September 18, 2017, petitioners were ordered to file any additional medical records
from A.M. 's appointments at the Children's Hospital of Omaha and any other evidence they


received the Hepatitis A, Hib, and Prevnar vaccinations on June 27, 2014, rather than June 18,
2014. Compare Petition with Pet'rs' Ex. 2.

3 These records were marked "Supplemental Attachments" and are referenced herein as "Pet'rs'
Supp. Att.".
                                            2
wis.hed for the undersigned to consider. Petitioners filed a status report on October 6, 2017, to
which they attached progress notes from Ms. Jairren Flodine, AM. 's social worker, Dr. Howard
Needleman, M.D., Dr. Lynne Clure, Ph.D., and Dr. Lois Starr. The progress notes again
confirmed that A.M. meets the criteria for ASD and also notes that the clinicians "feel there is a
strong possibility that [AM.'s ASD] is associated with another medical/genetic condition." Pet.
Ex. F at5, 7.

        A status conference was held on October 27, 2017, wherein the undersigned discussed
with the parties petitioners' recent filings. The undersigned stated that the additional records
petitioners filed on September 5, 2017, and October 6, 2017, are consistent with her earlier
findings of fact that AM. 's condition is not the result of a vaccine-related injury. The first
notation in the medical records of A.M.'s developmental delay occurred on May 12, 2015, when
she failed a developmental screening performed by Dr. Niazi. Pet'rs' Supp. Att. 6 at 21. Over
eight months passed between the time AM. 's vaccinations and the first notation of her
developmental delay, and thus a temporal association cannot be demonstrated.

       Petitioners were given an opportunity during the October 27, 2017 status conference to
ask questions and/or respond to the undersigned's comments. Petitioners pointed out that A.M.
was diagnosed with gliosis on August 1, 2017. The undersigned explained that while medical
records are informative of AM.'s condition, they do not show evidence that she suffered a
vaccine-related injury. Petitioners also pointed out their filings from Glaxo Smith Cline and
Merck, which show that the vaccinations AM. received were not recommended for children her
age. While the undersigned sympathizes with petitioners, she explained that documentation of
the manufacturers' recommendations still does not prove that the vaccinations that AM. received
caused the injuries that she suffers.

    III. Conclusion

        Given A.M.'s medical history as discussed in both the medical records and respondent's
Rule 4( c) Report, the undersigned agrees with respondent that A.M. has not alleged an injury on
the Vaccine Injury Table, nor do the medical records support such a claim. Because petitioners
cannot prove that AM. suffered a Table injury, 4 they are required to demonstrate evidence of
actual causation. In order to prevail in their case, petitioners must show by preponderant
evidence that the vaccinations A.M. received on June 27, 2014, and August 21, 2014, caused her
injuries, by providing: "(l) 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). Petitioners
were ordered to file such an expert report by April 28, 2017, and the undersigned has allowed
petitioners an additional six months to file the report. Because the medical records do not
demonstrate a vaccine-related injury and petitioners have been unable to file an expert report,


4
  A Table injury is an injury listed on the Vaccine Injury Table. See 42 U.S.C. § 300aa-
l l(c)(l)(C); 42 C.F.R. § 100.3.
                                                 3
there is no reasonable basis to proceed and thus the case should be dismissed.

        The undersigned extends her deepest sympathy to petitioners for the hardships that their
fam ily has faced and wishes them the best in the future. However, the undersigned cannot base
her decision in the case on her sympathy for petitioners' family, but rather upon the evidence
provided in the medical records.

       Petitioners previously expressed a desire to pursue a civil action in their case. The
undersigned has attached documentation, also available on the Court's website, 5 which contains
information regarding an election to file a civil action.

       In the absence of a timely filed motion for review pursuant to Appendix B to the Rules of
the Court, the Clerk of the Court SHALL ENTER JUDGMENT in accordance with this
decision. 6

         IT IS SO ORDERED.



Dated:    ID · 3 I · ()017                         ~
                                                     Nora Beth Dorsey
                                                     Chief Special Master




5 This information is also available on the Court's website at
http://www.uscfc.uscourts.gov/sites/default/files/Guidance%20on%20Exiting%20the%20Vaccin
e%20Program.pdf.

6Pursuant to Vaccine Rule l l(a), the parties may expedite entry of judgment by filing a joint
notice renouncing their right to seek review.
                                                4
