         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 17-1349V
                                      Filed: August 4, 2020
                                         UNPUBLISHED


    A.W., by her parent and natural                               Special Master Horner
    guardian, AMBER WILSON,

                         Petitioner,                              Petitioner’s Motion for Decision
    v.                                                            Dismissing Petition; Measles
                                                                  Mumps Rubella Vaccine
    SECRETARY OF HEALTH AND                                       (MMR); Type 1 Diabetes
    HUMAN SERVICES,

                        Respondent.


Renee J. Gentry, Vaccine Injury Clinic, George Washington Uni. Law School,
Washington, DC, for petitioner.
Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for respondent.

                                                DECISION1

        On September 27, 2017, petitioner filed a claim under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that her child suffered
adverse reactions, including Type 1 diabetes, weight loss and abdominal pain as a
result of her receipt of the MMR vaccinations on October 11, 2014 and September 15,
2015. (ECF No. 1.) On May 22, 2018, respondent filed his Rule 4 report,
recommending against compensation. (ECF No. 16.)

       On September 20, 2018, petitioner filed an expert report from Dr. Francis W.
Ruscetti. (ECF No. 21.) In response, respondent filed an expert report from Dr. Noel
Kieth Maclaren and Dr. Penelope A. Morel. (ECF Nos. 27, 28.) Petitioner filed a
supplemental expert report from Dr. Ruscetti. (ECF No. 36.) This case was reassigned


1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
to my docket on June 5, 2019. (ECF No. 39.) Subsequently, respondent filed
supplemental expert reports. (ECF Nos. 41, 42.)

         On August 3, 2020, petitioner filed a Motion for a Decision Dismissing the
Petition. (ECF No. 48.) Petitioner indicated that “[a]n investigation of the facts and
science supporting has demonstrated to the Petitioner that they will be unable to prove
. . . entitled to compensation in the Vaccine Program,” and that “to proceed any further
would be unreasonable and would waste the resources of the Court, the respondent,
and Vaccine Program.” (Id. at 1.) Petitioner further stated that “[p]etitioners understand
that a decision by the Special Master dismissing their petition will result in a judgment . .
. [and] have been advised that such a judgment will end all of their rights in the Vaccine
Program.” (Id.) Respondent does not oppose the motion but does reserve the right to
question the good faith and reasonable basis for the filing of this petition in opposition to
any motion for attorneys’ fees and costs. (Id. at 1-2.) “The petitioners do intend to
protect their rights to file a civil action in the future,” and “they intend to elect to reject
the Vaccine Program judgment against his and elect to file a civil action.” (Id.)

        To receive compensation in the Vaccine Program, petitioner must prove either
(1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table
– corresponding to a covered vaccine, or (2) that he suffered an injury that was actually
caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). To satisfy the burden
of proving causation in fact, petitioner must show by preponderant evidence: “(1) 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). The Vaccine Act, 42 U.S.C. § 300aa-13(a)(1), prohibits the undersigned from
ruling for petitioner based solely on his allegations unsubstantiated by medical records
or medical opinion.

        A.W.’s medical records do not support petitioner’s allegations by a
preponderance of the evidence. Although petitioner offered a medical opinion from Dr.
Ruscetti, the medical opinion did not provide persuasive evidence supporting a finding
of entitlement. Moreover, in this case, respondent filed competing medical opinions in
the form of persuasive expert reports refuting petitioner’s allegations. See de Bazan v.
Sec’y of Health & Human Servs., 539 F.3d 1347 (Fed. Cir. 2008) (Respondent’s
evidence that bears on petitioner’s burden to prove a prima facie case should be
considered even when the burden has not shifted to respondent).

      Accordingly, the undersigned GRANTS petitioner’s Motion for Decision
Dismissing Petition and DISMISSES this petition for insufficient proof.




                                               2
                                           CONCLUSION

     This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision.2


IT IS SO ORDERED.

                                                                  s/Daniel T. Horner
                                                                  Daniel T. Horner
                                                                  Special Master




2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.

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