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

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VANETTA PARSHALL,                   *
                                    *       No. 17-29V
                 Petitioner,        *       Special Master Christian J. Moran
                                    *
v.                                  *
                                    *       Filed: November 28, 2017
SECRETARY OF HEALTH                 *
AND HUMAN SERVICES,                 *       Decision dismissing case;
                                    *       influenza vaccine; GBS.
                 Respondent.        *
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Matthew Belanger, Faraci Lange, LLP, Rochester, NY, for petitioner.
Robert Coleman, United States Dep’t of Justice, Washington, D.C., for respondent.


             UNPUBLISHED DECISION DISMISSING PETITION1


       On January 9, 2017, petitioner filed a claim for compensation under the

National Vaccine Injury Compensation Program (the “Program”). 42 U.S.C. §§

300aa-1 to -34. Petitioner claimed that a flu vaccine that she received on January

10, 2014, caused her to develop Guillain-Barré Syndrome (“GBS”). Pet. at 1.




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  The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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.
      Respondent challenged petitioner’s eligibility for compensation under the

Program for two primary reasons. First, respondent questioned petitioner’s

diagnosis of GBS based on her medical records. Resp’t’s Rep., filed Aug. 21,

2017, at 5. Second, assuming that petitioner did have GBS, respondent questioned

whether the flu vaccine was the cause-in-fact of petitioner’s GBS, primarily due to

the time course of the disease in relation to the vaccination in petitioner’s case. Id.

at 5-7 (noting that the onset delay of 11 weeks in the present case is inconsistent

with the typical onset delay of three days to eight weeks.)

      A status conference was held on September 5, 2017. During this status

conference, petitioner stated that she would be meeting with experts to discuss

preparing a report in support of her claim for compensation. See Order, issued

Sep. 6, 2017. The undersigned proposed instructions for petitioner’s expert

reports. Id. Petitioner objected to the proposed instructions on September 19,

2017. Pet’rs’ Rep., filed Sep. 19, 2017. Petitioner’s objections were overruled and

a deadline of November 17, 2017, was set for petitioner to submit her expert

reports. Order, issued Sep. 26, 2017.

      On November 16, 2017, petitioner moved for the undersigned to issue a

decision dismissing her case. Pet’rs’ Mot., filed Nov. 16, 2017. Petitioner states

that an investigation of the science supporting petitioner’s claim demonstrates that

petitioner will be unable to prove causation under the Vaccine Act. Id. at 1.


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Petitioner states that she is aware that a dismissal will result in a judgment against

her and that respondent does not object. Id. at 1-2.

      Compensation under the Vaccine Act is available in two major forms. Table

injuries, which presume causation, can be established if a prescribed injury occurs

during a set period of time following a specific vaccination. Section 300aa-

11(c)(1)(C)(i). Alternatively, petitioners can receive compensation for injuries not

provided for in the vaccine injury table by bringing a successful petition for

compensation under Section 300aa-11(c)(1)(C)(ii) of the vaccine act.

      Here, petitioner does not claim that Ms. Parshall’s GBS constitutes a Table

injury under the Vaccine Act. This is a result of the delay between the vaccination

and the onset of petitioner’s symptoms. As an “off-Table Injury”, petitioner must

show, by a preponderance of the evidence, that the vaccine caused her injury. See

42 U.S.C. § 300aa–13(a)(1). And though the Vaccine Program was created, in

part, to provide an informal plaintiff-friendly forum for adjudicating vaccine injury

claims, the Federal Circuit has made clear that plaintiff’s burden is to show that the

injury more likely than not was the result of the vaccine. See Moberly v. Sec’y of

HHS, 592 F.3d 1315, 1322 (Fed. Cir. 2010), reh’g en banc denied, (Fed. Cir. Apr.

13, 2010) (noting that the burden of proving an off-Table injury under the Act is

“the traditional tort standard of ‘preponderant evidence’”).




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      As the petitioner herself recognizes, the evidence in the present case is

insufficient to conclude that the vaccine more likely than not caused her alleged

GBS. Most probative is the lack of an explanation for the significant delay

between the petitioner’s vaccination and the onset of her symptoms. While

petitioner is free to present evidence to the undersigned to establish causation-in-

fact despite the longer than typical delay, petitioner has instead elected to move for

dismissal. Accordingly, Ms. Parshall’s petition is dismissed for insufficient

proof. The Clerk’s Office is instructed to enter judgment in accord with this

decision.


      IT IS SO ORDERED.


                                              s/ Christian J. Moran
                                              Christian J. Moran
                                              Special Master




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