         In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                               No. 17-326V
                                         Filed: November 2, 2018

    * * * * * * * * * * * * *                        *   *
    LARRY THOMPSON,                                      *       Special Master Oler
                                                         *
                   Petitioner,                           *
    v.                                                   *       Petitioner’s Motion for a Decision;
                                                         *       Dismissal of Petition; Vaccine Act; Denial
    SECRETARY OF HEALTH                                  *       Without Hearing.
    AND HUMAN SERVICES,                                  *
                                                         *
                   Respondent.                           *
                                                         *
    * * * * * * * * * * * * *                        *   *

Lawrence Gene Michel, Kennedy, Berkley, et al., Salina, KS, for Petitioner.

Amy Paula Kokot, U.S. Dep’t of Justice, Washington, D.C. for Respondent.

                 DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1

        On March 9, 2017, Larry Thompson (“Petitioner”), filed a petition for compensation in the
National Vaccine Injury Compensation Program (“the Program”),2 alleging that he suffered from
Idiopathic Thrombocytopenia Purpura (“ITP”) as a result of receiving a tetanus, diphtheria, and
pertussis (“Tdap”) vaccine on April 18, 2016. Petition (“Pet.”) at 1, ECF No. 1. On that same
date, Petitioner also filed an affidavit (see Ex. 1, ECF No. 1-1), and three additional exhibits
comprised of medical records (see Exs. 2-4, ECF Nos. 1-2 thru 1-4).

       On April 21, 2017, Petitioner filed a Statement of Completion, attesting that “all of the
records required by [the Vaccine Act] pertaining to the above-captioned case” were filed as of that
date. See Statement of Completion, ECF No. 7. In response, the special master who was initially

1
  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request 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). Otherwise, the Decision in its present form will be available.
Id.
2
 National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Vaccine Program”), Pub. L. No. 99-660, 100
Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph
of 42 U.S.C. § 300aa (2012).

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assigned this case issued an order on April 24, 2017, requesting that Respondent file a status report
stating whether Respondent agrees that the records are complete. ECF No. 8. On September 19,
2017, Respondent filed a status report stating that his initial review indicated that the “record
appears complete for purposes of filing [his] Rule 4(c) Report,” and proposed a date for filing that
report. ECF No. 13.

       Respondent filed a Rule 4(c) Report on November 28, 2017, recommending that
compensation be denied and this case be dismissed. See Respondent’s Rule 4(c) Report at 1, 7,
ECF No. 16. In his Rule 4(c) Report, Respondent pointed out, among other things, that the record
as of November 28, 2017, did not reflect that Petitioner had met the Vaccine Act’s severity
requirements set forth at § 300aa-11(c)(1)(D).3 See Id. at 6-7.

        This case was transferred to my docket on December 1, 2017. ECF No. 18. On December
5, 2017, Petitioner filed a status report requesting time to file an expert report in support of his
claim; I granted that request. See ECF No. 21; see also non-PDF Order of December 7, 2017. On
April 2, 2018, instead of filing an expert report, Petitioner filed a motion for a ruling on the record.
ECF No. 23. In that one-page motion, Petitioner referenced the four exhibits that had been filed
up to that point in this case, and, without more, deemed those “records to support a ruling in favor
of [P]etitioner.” Respondent filed a response on April 16, 2018, stating (1) that “[P]etitioner has
failed to provide preponderant evidence in support of his causation-in-fact claim,” and (2) that “the
record does not reflect that [P]etitioner’s ITP or its sequela persisted for more than six months after
the administration of his Tdap vaccine.” See ECF No. 24 at 1.

         I issued a Scheduling Order on July 27, 2018, informing the parties that Petitioner’s motion
for a ruling on the record was not in compliance with this Court’s directives, as outlined in the
Guidelines for Practice Under the National Vaccine Injury Compensation Program
(“Guidelines”),4 posted on the Court’s website.5 ECF No. 25 at 3. Additionally, in that scheduling
order, I informed the parties that the record, as it existed at that time, did not reflect that Petitioner’s

3
  Specifically, §300aa-11(c)(1)(D) of the Vaccine Act requires that a Petitioner either show that: (1) he “suffered the
residual effects or complications of [his alleged ITP] for more than 6 months after the administration of the vaccine”
(see §300aa-11(c)(1)(D)(i)); (2) that he “died from the administration of the vaccine” (see §300aa-11(c)(1)(D)(ii)); or
(3) that his ITP “resulted in inpatient hospitalization and surgical intervention” (see § 300aa-11(c)(1)(D)(iii)).
4
    In relevant part, Section IX of the Guidelines states the following regarding a motion for a ruling on the record:

           In the motion, petitioner should specifically identify the evidence in the record on
           which petitioner relies with reference to the exhibit numbers and specific page numbers, as well as specific
           statements, diagnoses, and conclusions made by medical professionals that support petitioner’s claim. Simply
           referring to exhibits generally is insufficient. Petitioner should also explain how this information supports
           petitioner’s theory of causation in the absence of an expert medical opinion. A template for a motion for a
           ruling on the record is available at http://www.uscfc.uscourts.gov/vaccinesample-filings.

Guidelines at 62, emphasis added. I thus informed Petitioner that his one-page motion for a ruling on the record,
which lacked proper explanation and analysis of the medical records in support of his claim, did not meet the standards
articulated in the Guidelines. ECF No. 25 at 3.
5
        The     posted      Guidelines         can     be    accessed  at    the     following                       link:
https://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-4212016.pdf.


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ITP or its sequela persisted for more than six months after the administration of his Tdap vaccine.
Id. Accordingly, I ordered Petitioner to either file: 1) additional medical records and a brief
articulating how Petitioner met the six-month injury requirement in this case; or 2) a motion for a
dismissal decision, as articulated in the Guidelines. Id. at 4. Petitioner subsequently requested an
extension of time (ECF No. 26), which I granted (see non-PDF Scheduling Order of 9/26/2018).

        On October 25, 2018, Petitioner filed his present motion to dismiss this case. Motion to
Dismiss, ECF No. 27. In that Motion, Petitioner “moves for a decision by the Special Master
dismissing his case,” stating that “[a]n investigation of the facts and science supporting his case
has demonstrated to [P]etitioner that he will be unable to prove that he is entitled to compensation
in the Vaccine Program.” Id. at 1. A member of my staff communicated with counsel for both
parties via electronic mail on November 2, 2018, requesting Respondent to state his position on
this instant Motion. Respondent’s counsel indicated that Respondent does not oppose this instant
motion.

       To receive compensation under the Vaccine Program, Petitioner must prove either (1) that
he suffered a “Table Injury” -- i.e., an injury falling within the Vaccine Injury Table -- from his
Tdap vaccination, or (2) that he suffered an injury that was actually caused by his Tdap vaccination.
See Sections 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner may not
receive a Vaccine Program award based solely on his claims alone. Rather, the petition must be
supported by either medical records or by the opinion of a competent medical expert. Section
13(a)(1). In this case, however, there is insufficient evidence in the record for Petitioner to meet
his burden of proof. Petitioner’s claim therefore cannot succeed and must be dismissed. Section
11(c)(1)(A).


      Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.


       IT IS SO ORDERED.

                                                              s/ Katherine E. Oler
                                                               Katherine E. Oler
                                                               Special Master




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