                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         Filed: January 15, 2019

* * * * * * *                   *   *   *    *   *    *
CHELSIE DECKER,                                       *                 UNPUBLISHED
                                                      *
                  Petitioner,                         *                 No. 17-853V
                                                      *
v.                                                    *                 Special Master Gowen
                                                      *
SECRETARY OF HEALTH                                   *                 Petitioner’s Motion for Dismissal
AND HUMAN SERVICES,                                   *                 Decision; Influenza (“Flu”);
                                                      *                 Guillain-Barré Syndrome (“GBS”);
                  Respondent.                         *                 Viral Myositis.
*    * *     *    * * * *           *   *    *   *    *

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Linda S. Renzi, United States Department of Justice, Washington, DC for respondent.

                                    DECISION ON ENTITLEMENT1

        On June 23, 2017, Chelsie Decker (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.2 Petitioner alleged that as a result of an influenza (“flu”) vaccine
received on October 13, 2016, she developed Guillain-Barré Syndrome (“GBS”), with residual
injuries and/ or complications lasting for more than six months.

        On January 3, 2019, petitioner filed a motion for a decision dismissing her claim.
Petitioner’s Motion (ECF No. 35). The motion provides that an investigation of the facts and
science supporting the petition has demonstrated to petitioner that she will be unable to prove
that she is entitled to compensation in the Vaccine Program. Id. at ¶ 1. The motion further
provides that petitioner understands that a decision by the special master dismissing her petition
will result in a judgment against her, and that such a judgment will end all of her rights in the

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.
Vaccine Program. Id. at ¶ 2. Petitioner intends to protect her rights to file a civil action in the
future. Therefore, pursuant to Section 21(a)(2), petitioner intends to elect to reject the Vaccine
Program judgment and to file a civil action. Id. at 5.

        To receive compensation in the Vaccine Program, petitioner must prove either: (1) that
she suffered a “Table Injury,” i.e., an injury beginning within a specified period of time
following receipt of a corresponding vaccine listed on the Vaccine Injury Table, or (2) that she
suffered an injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). An
examination of the record does not support a finding that petitioner suffered a “Table injury.”
While the Vaccine Injury Table does list flu vaccine and GBS within the approximate time
period alleged here, it is not clear that petitioner did indeed experience GBS. Respondent
disputes that diagnosis. See Rule 4(c) Report (ECF No. 22) at 11 – 14. I agree that petitioner
needs to retain an expert to either support the diagnosis of GBS or establish that the flu vaccine
was the cause-in-fact of her alternative diagnosis of viral myositis with rhabdomyolysis. See
Scheduling Order entered on April 13, 2018 (ECF No. 25); Scheduling Order entered on October
17, 2018 (ECF No. 31). However, petitioner has not found an expert able to provide a
supportive opinion.

        Under the Vaccine Act, the Vaccine Program may not award compensation solely based
on a petitioner’s own claims. Rather, a petitioner must support his claim with either medical
records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records do
not establish either a “Table Injury” or an “off-Table” injury which was caused-in-fact by the
vaccine. Furthermore, petitioner has not submitted an expert report in support of her claim.
Petitioner has not met her burden of proof. Therefore, her claim cannot succeed and it must be
dismissed. § 11(c)(1)(A).

       Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.

       IT IS SO ORDERED.
                                                              s/Thomas L. Gowen
                                                              Thomas L. Gowen
                                                              Special Master




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