              In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-0276V
                                      (Not to be Published)


*************************
CHRISTINE SMITH,             *
                             *                            Special Master Oler
                 Petitioner, *                            Filed: February 1, 2019
     v.                      *
                             *                            Petitioner’s Motion for a Decision;
SECRETARY OF HEALTH          *                            Dismissal of Petition; Vaccine
AND HUMAN SERVICES,          *                            Act; Denial Without Hearing.
                             *
                 Respondent. *
                             *
*************************

Joseph Alexander Vuckovich, Maglio Christopher and Toale, PA, Washington, D.C., for Petitioner.

Robert Paul Coleman, III, U.S. Dep’t of Justice, Washington, D.C. for Respondent.

               DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1

       On February 28, 2017, Christine Smith (“Petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program,2 alleging that she developed a left




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  Although this Decision has been formally designated “not to be published,” it will nevertheless be posted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
  The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
shoulder injury as a result of the influenza (“flu”) vaccination that she received on October 16,
2014.3 Petition (“Pet.”) at 1, ECF No. 1.

      Petitioner filed her statement of completion on February 28, 2017. ECF No. 5. This case
was assigned to the Special Processing Unit (“SPU”), and an initial status conference was
conducted by an OSM staff attorney on April 19, 2017. See Minute Entry for 4/19/2017.

        On September 22, 2017, Respondent filed a Rule 4(c) Report. ECF No. 15. Respondent
stated that Petitioner had not satisfied her burden of proof, specifically noting that she did not seek
medical attention for her shoulder until thirteen months after receiving the allegedly causal flu
vaccination. Id. at 5. Respondent concluded that “[P]etitioner has failed to demonstrate entitlement
to compensation and her petition for compensation should be dismissed.” Id. at 7.

        On October 4, 2017, Special Master Moran ordered Petitioner to complete an affidavit
answering a series of questions concerning prior medical treatment, employment, documentation
in her possession, and activities. ECF No. 18. In his Order, Special Master Moran stated that “a
hearing to receive oral testimony may be appropriate.” Id. Petitioner submitted her requested
affidavit on November 9, 2017. Ex. 10, ECF No. 23.

       On April 4, 2018, Petitioner submitted an affidavit from her son, Paul del Valle. Ex. 11,
ECF No. 33. On August 13, 2018, she submitted an affidavit from her daughter, Maria Torres
(Ex. 14), as well as a Christmas card purportedly written and sent in late December 2014 (Ex. 15).

       I issued an order on April 26, 2018, scheduling a fact hearing in this case to determine
onset of Petitioner’s injuries. ECF No. 34. I conducted the hearing on August 22, 2018, in
Washington, D.C. (See Minute Entry for 08/23/2018), and I issued my Ruling on Onset (“Ruling”)
on November 20, 2018 (ECF No. 45). In that Ruling, after consideration of witness testimony, the
medical records, numerous affidavits, and documentary evidence, I found that the
contemporaneous medical records more accurately reflected the onset of Petitioner’s pain. Id. I
concluded that Petitioner’s left upper arm pain began in November of 2015. Id. Furthermore, I
ordered that, by January 21, 2019, Petitioner file an expert report supporting onset of left arm pain
at 13 months after flu vaccination, or a status report indicating how she intends to proceed.

        On January 18, 2019, Petitioner filed the present motion to dismiss her claim, indicating
that “[a]n investigation of the facts and science supporting her case has demonstrated to Petitioner
that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” See
Petitioner’s Motion for Decision Dismissing Petition, ECF No. 46.

3
 This case was initially assigned to the Special Processing Unit and Chief Special Master Dorsey (ECF No.
6, 8), reassigned to Special Master Moran on September 28, 2017 (ECF No. 17), and then reassigned to my
docket on January 29, 2018 (ECF No. 29).

                                                   2
        To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused
by a vaccine. 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 in
accordance with his motion, 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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