In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

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SINIDU ROBI and                   *
YILAK KEBEBEW, legal              *
representatives of a minor child, *
DAGIM YILAK,                      *                      No. 12-352V
                                  *                      Special Master Christian J. Moran
                    Petitioners,  *
                                  *
v.                                *                      Filed: July 1, 2014
                                  *
SECRETARY OF HEALTH               *                      Decision on the record;
AND HUMAN SERVICES,               *                      insufficient proof of causation;
                                  *                      Table encephalopathy; seizure
                                  *                      disorder; infantile spasms.
                    Respondent.   *
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Simina Vourlis, Law Offices of Simina Vourlis, Columbus, OH, for petitioner;
Jennifer L. Reynaud, United States Dep’t of Justice, Washington, DC, for
respondent.

           UNPUBLISHED DECISION DENYING COMPENSATION1

      Sinidu Robi and Yilak Kebebew filed a petition for compensation under the
National Childhood Vaccine Injury Compensation Program (the “Vaccine Act” or
“Program”), 42 U.S.C. § 300aa-10 through 34 (2006), alleging that their son,
Dagim, received the combined diphtheria-tetanus-acellular pertussis/ haemophilus
influenzae type B/ inactivated polio (“DTaP-HIB-IPV”), hepatitis B, Prevnar
pneumococcal 7-valent conjugate and rotavirus vaccines on June 18, 2009. The

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          The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
petition proposed two causes of action. First, the petitioners alleged that Dagim
suffered an on-Table encephalopathy. Petition at ¶¶ 3-4, 6-9. Alternatively,
petitioners alleged that the vaccines were the cause-in-fact of other injuries,
including seizures, infantile spasms with intractable epilepsy, hypertonia, and
developmental delays. Id. at 5. The information in the record, however, does not
show entitlement to an award under the Program.

        I.   Procedural History

       An initial status conference was held on July 17, 2012. During this
conference, the deadline for respondent’s Rule 4 report was suspended so
petitioners could collect additional medical records. In support of their petition,
petitioners periodically filed several medical records (exhibits 1-13) and affidavits
supporting those records (exhibits 14-15), followed by a statement of completion
on September 17, 2012.

       Respondent filed her report concluding that petitioners failed to fulfill the
criteria for a Vaccine Table injury and failed to demonstrate by a preponderance of
the evidence that Dagim’s seizure disorder was caused by the various vaccines
received on June 18, 2009. Resp’t’s Rep., filed Nov. 8, 2012, at 14. With respect
to the on-Table claim, respondent argued that no contemporaneously created
medical records supported the allegation that Dagim experienced an
encephalopathy within the time listed on the Vaccine Injury Table. Id. at 10. With
respect to petitioners’ other claim, respondent argued that petitioners did not
establish a medical theory causally connecting the vaccines to Dagim’s other
injuries. Id.

       A status conference was held on November 20, 2012. In this conference,
petitioners were ordered to file a status report regarding their intentions to pursue
the on-Table claim. Petitioners did file this report, which stated that they would
file additional affidavits. Petitioners filed supplemental affidavits (exhibits 17-19)
on January 16, 2013.

       A factual hearing was held June 20, 2013, in Columbus, Ohio, where
Dagim’s mother, father, brother, and aunt testified. Three of the witnesses testified
with the assistance of an interpreter. On April 4, 2014, Findings of Fact were
issued stating that Dagim’s excessive eye blinking began on August 10, 2009.
Findings of Fact at 8. This date is 53 days after his June 18, 2009 vaccinations and
four days before his next set of vaccinations.


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       A status conference was held on April 24, 2014, during which petitioners
indicated they intended to seek an expert to support their causation-in-fact cause of
action. The petitioners requested 60 days to search for an expert, and,
consequently, were ordered to file their expert report by June 25, 2014. On June
27, 2014, petitioners moved for a decision dismissing their petition. Petitioners
state that although they disagree with the undersigned’s finding of fact as to the
date of onset, they “have chosen not to pursue further proceedings in the case.”
Pet’r’s Mot., filed June 27, 2014, at 1-2. Accordingly, this case is now ready for
adjudication.

       II.   Analysis

       To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), petitioners must prove either 1) that Dagim
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to her vaccination, or 2) that he suffered an injury that was actually
caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1).

      As indicated above, the April 4, 2014 Findings of Fact credited medical
records created in 2009 that indicated that Dagim’s neurologic problems began
weeks after his June 18, 2009 vaccination. The Findings of Fact did not accept as
persuasive the petitioners’ recollections from years later. The Findings of Fact
essentially prevented the petitioners from prevailing upon an on-Table claim.
Thus, petitioners are necessarily pursuing an off-Table / causation-in-fact claim.

       Under the Vaccine Act, a petitioner may not be given a Program award
based solely on the petitioner’s claims alone. 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 do not support
petitioners’ claim, a medical opinion must be offered in support. However,
petitioners have offered no such opinion.

      Accordingly, it is clear from the record in this case that petitioners failed to
demonstrate either that Dagim suffered a “Table Injury” or that his injuries were
“actually caused” by a vaccination. Thus, this case is dismissed for insufficient
proof. The Clerk shall enter judgment accordingly.

     Any questions may be directed to my law clerk, Marc Langston, at (202)
357-6392.


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IT IS SO ORDERED.

                        S/Christian J. Moran
                        Christian J. Moran
                        Special Master




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