               In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 14-1227V
                                          (Not to be Published)


*************************
KEITH VARELA, on behalf of his *
minor child, M.V.,             *                                 Filed: January 6, 2016
                               *
                   Petitioner, *
       v.                      *                                 Vaccine Act Entitlement;
                               *                                 Denial Without Hearing
SECRETARY OF HEALTH            *
AND HUMAN SERVICES,            *
                               *
                   Respondent. *
                               *
*************************

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Ryan Pyles, U.S. Dep’t of Justice, Washington, D.C. for Respondent.

                                      DECISION DISMISSING CASE1

        On December 22, 2014, Keith Varela filed a petition on behalf of his minor child M.V.,
seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine
Program”).2 The Petition alleges that the “over-vaccination” that M.V. experienced on March 16,
2012, caused him to develop neurological symptoms, including speech delay and developmental
delay. See Pet. at 1 (ECF No. 1). After Petitioner filed his medical records and Respondent filed
her 4(c) Report disputing compensation, I ordered Petitioner to file an expert report supporting his

1
  Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). 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 whole decision will be available to the public.
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) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
claim. Petitioner missed several deadlines for his expert report, despite having over six months to
do so, and ultimately did not file a report.

        On January 6, 2016, Petitioner filed an unopposed Motion for a Decision Dismissing His
Petition. Mot. to Dismiss (ECF No. 25). In it, Petitioner states that he is unlikely to succeed in
meeting his burden of proof, particularly due to newly discovered evidence. Id. at 1. Petitioner also
stated his understanding that the requested decision will end all of his rights in the Vaccine
Program. Id. at 2. Mr. Varela intends to pursue civil action in the future, but in an effort to not
waste judicial resources, requests dismissal of his current claim. Id. at 1-2. Respondent does not
object.

        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 §§ 13(a)(1)(A) and 11(c)(1). An examination of the record, however, does not
uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain
sufficient persuasive evidence establishing that the alleged injury that Petitioner experienced could
have been caused by the vaccinations received, or that it lasted more than six months (see
§ 11(c)(1)(D)(i)).

       In addition, 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 physician. Section 13(a)(1). In this case, there is insufficient
evidence in the record for Petitioner to meet her burden of proof, and he has not offered an expert
opinion supporting his claim. 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/ Brian H. Corcoran
                                                              Brian H. Corcoran
                                                              Special Master




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