            IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                      OFFICE OF SPECIAL MASTERS
                                             No. 07-804V
                                       Filed: January 13, 2014

****************************
JESSICA ENGELS and KAIN ENGELS, *
as parents of B.E.,              *
                                 *                         Dismissal; Measles, Mumps, Rubella;
                    Petitioners, *                         MMR; Haemophilus Influenzae Type B;
v.                               *                         Hib; Varicella; Influenza; Pervasive
                                 *                         Developmental Disorder-Not Otherwise
SECRETARY OF HEALTH              *                         Specified; PDD-NOS; Autism Spectrum
AND HUMAN SERVICES,              *                         Disorder; ASD.
                                 *
                    Respondent.  *
****************************

Donald M. Gerstein, Esq., Richard Gage, P.C., Cheyenne, WY, for petitioners.
Lynn E. Ricciardella, Esq., U.S. Dept. of Justice, Washington, D.C., for respondent.

                                               DECISION1

Vowell, Chief Special Master:

       On November 15, 2007, Jessica Engels [“petitioner”],2 filed a Short-Form Petition
for Vaccine Compensation3 under the National Vaccine Injury Compensation Program,


1 Because this decision contains a reasoned explanation for my action in this case, I intend to post this
decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). As provided by Vaccine Rule 18(b),
each party has 14 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 entire decision will be available to the public.

2 On July 3, 2013, I granted petitioner’s motion to amend the caption to add B.E.’s father, Kain Engels, as
a petitioner and to replace the vaccinee’s name with his initials. Because Jessica Engels was the sole
petitioner until several months after the February 5, 2013 fact hearing, I referred to a singular “petitioner”
throughout my December 20, 2013 Order and Ruling on Facts. For consistency, I again will refer to a
singular petitioner in this Decision.

3 By electing to file a Short-Form Autism Petition for Vaccine Compensation, petitioner alleges that:

        [a]s a direct result of one or more vaccinations covered under the National Vaccine Injury
        Compensation Program, the vaccinee in question has developed a neurodevelopmental
        disorder, consisting of an Autism Spectrum Disorder [“ASD”] or a similar disorder. This
        disorder was caused by a measles-mumps-rubella (MMR) vaccination; by the
        “thimerosal” ingredient in certain Diphtheria-Tetanus-Pertussis (DTP), Diphtheria-
2 U.S.C. §300aa-10, et seq.4 [the “Vaccine Act” or “Program”], on behalf of her minor
son, B.E. By filing a short-form petition, petitioner opted into the Omnibus Autism
Proceeding [“OAP”].

       On February 28, 2012, after the conclusion of the OAP test cases, petitioner filed
an amended petition, alleging that the MMR, Hib, varicella, and influenza vaccinations
B.E. received on November 23, 2004, caused him to suffer an adverse reaction,
including “fever, seizure, vomiting, and altered mental status” six days later. Amended
Petition at ¶¶ 1, 3. Petitioner further alleged that B.E. suffered from residual effects of
his vaccine injury, including developmental delay, for more than six months. Id. at ¶ 5.

       On June 25, 2012, I ordered petitioner to file an expert report. Before complying
with my order to file an expert report, petitioner requested a fact hearing to resolve gaps
in B.E.’s pediatric record due to his pediatrician’s alleged failure to record petitioner’s
concerns about B.E.’s regression. Petitioner’s Request for Fact Only Hearing, filed
Sept. 24, 2012.

        Because I determined that a factual dispute existed regarding what transpired
between B.E.’s November 23, 2004 vaccinations and his diagnosis with Pervasive
Developmental Disorder-Not Otherwise Specified [“PDD-NOS”],5 I agreed with petitioner
that a fact hearing was necessary. During the hearing, conducted in Tampa, Florida on
February 5, 2013, Mrs. Engels testified in person.

       On December 20, 2013, I issued a fact ruling in which I found B.E.’s
contemporaneous medical records and the non-contemporaneous histories provided to
multiple health care providers to be more reliable than petitioner’s testimony. I ordered



        Tetanus-acellular Pertussis (DTaP), Hepatitis B, and Haemophilus Influenza[e] Type B
        (HIB) vaccinations; or by some combination of the two.

Autism General Order #1, filed July 3, 2002, Exhibit A, Master Autism Petition for Vaccine Compensation
at 2.

4 National Childhood Vaccine Injury Act of 1986, 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).

5 Pervasive Developmental Disorder [“PDD”] was the umbrella term for ASDs used in the Diagnostic and
Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed. text revision 2000)
[“DSM-IV-TR”] at 69. The DSM-IV-TR has since been replaced by the Diagnostic and Statistical Manual
of Mental Disorders (American Psychiatric Association, 5th ed. 2013) [“DSM-V”], which uses the term
“autism spectrum disorder.” Although Mrs. Engels testified that B.E. was diagnosed with PDD (Transcript
at 53), his specific diagnosis is PDD-NOS (Petitioner’s Exhibit 9, p. 4). PDD-NOS involves “‘impairment in
the development of reciprocal social interaction,’ coupled with impairment in either communication skills
or the presence of stereotyped behaviors or interests.” White v. Sec’y, HHS, No. 04-337V, 2011 WL
6176064, at *6 (Fed. Cl. Spec. Mstr. Nov. 22, 2011) (citing DSM-IV-TR at 84).

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petitioner to file an expert report by February 21, 2014, based on the facts I found or, if
the expert disagreed with any factual finding, stating the basis for the disagreement.

       On January 10, 2014, petitioner moved for a decision dismissing the petition.
According to petitioner, her expert reviewed my factual findings and concluded that he
could not opine in favor of causation on petitioner’s behalf. Accordingly, petitioner
requests that this court issue a decision dismissing the petition.

       To receive compensation under the Program, petitioner must prove either 1) that
B.E. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of B.E.’s vaccinations, or 2) that B.E. suffered an injury that was
actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the
record did not uncover any evidence that B.E. suffered a “Table Injury.” Further, the
record does not contain persuasive evidence indicating that B.E.’s alleged injury was
vaccine-caused.

        Under the Act, petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical
records or by the opinion of a competent physician. § 13(a)(1). In this case, because
there are insufficient medical records supporting petitioner’s claim, a medical opinion
must be offered in support. Petitioner, however, has offered no such opinion that
supports a finding of entitlement.

       Adopting my December 20, 2013 factual findings, and based on the record as a
whole, it is clear that petitioner has failed to demonstrate either that B.E. suffered a
“Table Injury” or that B.E.’s injuries were “actually caused” by a vaccination. Thus, this
case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.

     Any questions about this order may be directed to my law clerk, Tucker
McCarthy, at (202) 357-6392.

IT IS SO ORDERED.

                                          s/ Denise K. Vowell
                                          Denise K. Vowell
                                          Chief Special Master




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