                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                        Filed: February 14, 2019

* * * * * *                *    *   *    *    *   *    *
ELVIRA CRUZ,                                           *                 UNPUBLISHED
                                                       *
                  Petitioner,                          *                 No. 17-1167V
                                                       *
v.                                                     *                 Special Master Gowen
                                                       *
SECRETARY OF HEALTH                                    *                 Petitioner’s Motion for Dismissal
AND HUMAN SERVICES,                                    *                 Decision; Influenza (“Flu”); Status
                                                       *                 Asthmaticus; Respiratory Failure;
                  Respondent.                          *                 Renal Failure; Acute Critical Illness
*    * *     *    * * * *           *    *    *   *    *                 Myopathy.

Mark T. Sadaka, Mark T. Sadaka LLC, Englewood, NJ, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC for respondent.

                                           DISMISSAL DECISION1

        On August 29, 2017, Elvira Cruz (“petitioner”) filed a petition in the National Vaccine
Injury Compensation Program.2 Petitioner alleged that on September 9, 2014, she received an
influenza (“flu”) vaccination which either caused-in-fact or in the alternative, significantly
aggravated her subsequent status asthmaticus, respiratory failure, renal failure, and acute critical
illness myopathy, with residual injuries and/ or complications lasting for more than six months.
Petition (ECF No. 1) at Preamble, ¶ 9; see also Amended Petition filed September 11, 2017
(ECF No. 11) (correcting the spelling of petitioner’s name). The information in the record,
however, does not show entitlement to an award in the Program.



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 am required 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. This means the
Ruling will be available to anyone with access to the Internet. 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.
        On February 13, 2019, petitioner filed a motion for a decision dismissing her claim.
Petitioner’s Motion (ECF No. 40). The motion 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 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 1.

       Petitioner provides that respondent expressly reserves the right, pursuant to Section 15(e),
to question the good faith and reasonable basis and to oppose, if appropriate, her application for
attorneys’ fees and costs. Id. at 1. Respondent does not otherwise oppose this motion. Id.

        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.”
Further the record does not contain persuasive evidence that petitioner suffered an injury that
were either caused-in-fact or in the alternative, significantly aggravated by the flu vaccine she
received on September 9, 2014.

        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 causation for either a “Table Injury” or an “off-Table” injury which was either
caused-in-fact or significantly aggravated by the vaccine. Further, with regard to the “off-Table”
injury, 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.3

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




3
 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).


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