                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                          Filed: May 28, 2019

* * * * * * * *                     *    *    *   *    *
ANDREW CAMPBELL,                                       *                 UNPUBLISHED
                                                       *
                  Petitioner,                          *                 No. 16-996V
                                                       *
v.                                                     *                 Special Master Gowen
                                                       *
SECRETARY OF HEALTH                                    *                 Dismissal; Petitioner’s Motion for
AND HUMAN SERVICES,                                    *                 Decision; Varicella; Irritable
                                                       *                 Bowel Disease (“IBD”).
                  Respondent.                          *
*    * *     *    * * * *           *    *    *   *    *

Diana L. Stadelnikas, Maglio Christopher & Toale PA (FL), Sarasota, FL, for petitioner.
Jay M. All, United States Department of Justice, Washington, DC for respondent.

                                                   DECISION1

        On August 12, 2016, Andrew Campbell (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of a varicella
vaccination received on August 14, 2013, petitioner developed injuries including inflammatory
bowel disease (IBD) with residual injuries and/ or complications lasting for more than six
months. Petition (ECF No. 1). The information in the record, however, does not show
entitlement to an award in the Program.

        On May 20, 2019, petitioner filed a motion for a decision denying compensation.
Petitioner’s Motion (ECF No. 20). The motion provides that petitioner has filed all evidence that
he believes is relevant to this matter and does not intend to file further evidence in support of his

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion 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
opinion 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
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion 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.
case. Id. at ¶ 1. Petitioner waives the right to any hearing or further proceedings in this matter.
Id. at ¶ 2. Petitioner moves for a decision denying compensation. Id. at ¶ 3. Petitioner
understands that a decision by the special master dismissing his petition will result in a judgment
against him and that such a judgment will end all of his rights in the Vaccine Program. Id. at ¶ 4.
Petitioner may apply for fees and costs once his entitlement case has concluded. Id. (citing
Section 15(e)). Petitioner’s motion should not be construed as an admission, concession, or
waiver as to any matters raised by respondent to petitioner’s request for attorneys’ fees and costs.
Id. at 5. 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 ¶ 6.

        To receive compensation in the Vaccine Program, petitioner must prove either: (1) that he
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 he 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 was caused-in-
fact by the varicella vaccination he received on August 14, 2013.

        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 caused-in-
fact by the vaccine. With regard to the “off-Table” injury, petitioner has submitted an expert
report in support of his claim. However, it does not appear that the expert reviewed the medical
records prior to vaccination, which are not mentioned in the petition but do reflect a history of
gastrointestinal issues. See Scheduling Order filed on April 4, 2019 (ECF No. 50) at 2. Based
on my review of the medical records, my view is that it will be difficult for petitioner to establish
that the varicella vaccine was the cause in fact of his Crohn’s disease. Id. at 2. If petitioner
wished to proceed with the case, he would need to amend the petition and pursue a claim that the
vaccine significantly aggravated that underlying condition. However, that claim would also be
difficult. Id. Petitioner has not amended the petition or submitted a supplemental expert report.
Therefore, I agree that petitioner has not met his burden of proof. Therefore, his 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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