                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                        Filed: December 7, 2018

* * * * * * * *                     *   *    *   *    *
NATHEN DIMAGGIO,                                      *                 UNPUBLISHED
                                                      *
                  Petitioner,                         *                 No. 17-1799V
                                                      *
v.                                                    *                 Special Master Gowen
                                                      *
SECRETARY OF HEALTH                                   *                 Petitioner’s Motion for Dismissal
AND HUMAN SERVICES,                                   *                 Decision; Human Papillomavirus
                                                      *                 (“HPV”); Peroneal Neuropathy.
                  Respondent.                         *
*    * *     *    * * * *           *   *    *   *    *

Scott W. Rooney, Nemes, Rooney, P.C., Farmington Hills, MI, for petitioner.
Colleen C. Hartley, United States Department of Justice, Washington, DC for respondent.

                                    DECISION ON ENTITLEMENT1

        On November 15, 2017, Nathen DiMaggio (“petitioner”) filed a petition in the National
Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving a human
papillomavirus (“HPV”) vaccine on July 22, 2014, he suffered a peroneal neuropathy with
residual injuries and/ or complications lasting for more than six months. The information in the
record, however, does not show entitlement to an award in the Program.

        On December 7, 2018, petitioner filed a motion for a decision dismissing his claim.
Petitioner’s Motion (ECF No. 29). The motion provides that an investigation of the facts and
science supporting the petition has demonstrated to petitioner that he will be unable to prove that
she is entitled to compensation in the Vaccine Program. Id. at ¶ 1. The motion further provides
that petitioner understands that a decision by the special master dismissing her petition will result

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa
of the Act.
in a judgment against him and that such a judgment will end all of his rights in the Vaccine
Program. Id. at ¶ 2. Petitioner intends to protect his rights to file a civil action in the future.
Therefore, pursuant to Section 21(a)(2), petitioner intends to elect to reject the Vaccine Program
judgment and to file a civil action. Id. at ¶ 5.

       Petitioner provides that respondent expressly reserves the right, pursuant to Section 15(e),
to question the good faith and reasonable basis and to oppose, if appropriate, petitioner’s
application for costs. Id. at ¶ 4. Respondent does not otherwise oppose this motion. Id.

        To receive compensation in the Vaccine Program, petitioner must prove either: (1) that
she suffered a “Table Injury,” i.e., an injury beginning within a specified period of time
following receipt of a corresponding vaccine listed on the Vaccine Injury Table, or (2) that she
suffered an injury that was caused-in-fact by a covered vaccine. §§ 13(a)(1)(A); 11(c)(1). An
examination of the record does not support a finding that petitioner suffered a “Table injury.”
Further the record does not contain persuasive evidence that petitioner suffered an injury that
was caused-in-fact by the HPV vaccine he received on July 22, 2014.

        Under the Vaccine Act, the Vaccine Program may not award compensation solely based
on a petitioner’s own claims. Rather, a petitioner must support his claim with either medical
records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records do
not establish causation for either a “Table Injury” or an “off-Table” injury which was caused-in-
fact by the vaccine. Further, with regard to the “off-Table” injury, petitioner has not submitted
an expert report in support of his claim. Petitioner has not met his burden of proof. Therefore,
his claim cannot succeed and it must be dismissed. § 11(c)(1)(A).

       Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.

       IT IS SO ORDERED.
                                                             s/Thomas L. Gowen
                                                             Thomas L. Gowen
                                                             Special Master




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