    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                         No. 12-100v
                                     Filed: July 26, 2013
                                  (Reissued August 9, 2013)

*************************************                        NOT TO BE PUBLISHED
HEATHER L. MAGILL, and SCOTT A.          *
MAGILL, Natural Parents and Guardians of *
C.J.M.                                   *
                                         *                   Special Master Zane
        Petitioner,                      *
                                         *                   Ruling on the Record; Table Injury;
v.                                       *                   Insufficient Proof of Causation
                                         *
SECRETARY OF HEALTH                      *
AND HUMAN SERVICES,                      *
                                         *
                Respondent.              *
                                         *
*************************************

Thomas P. Gallagher, Gallagher & Gallagher, Somers Point, NJ, for Petitioner;
Lara Ann Englund, United States Dep’t of Justice, Washington, DC, for Respondent.

                     UNPUBLISHED DECISION DISMISSING CASE 1

       On February 13, 2012, Heather L. Magill and Scott A. Magill (“Petitioners”), natural

1
 Because this decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, § 205, 44 U.S.C. § 3501 (2006).
The decisions of the special master will be made available to the public with the exception of
those portions that contain trade secret or commercial or financial information that is privileged
and confidential, or medical or similar information whose disclosure would clearly be an
unwarranted invasion of privacy. As provided by Vaccine Rule 18(b), each party has 14 days to
file a motion requesting the redaction from this decision of any such alleged material. In the
absence of a timely request, which includes a proposed redacted decision, the entire document
will be made publicly available. If the special master, upon review of a timely filed motion to
redact, agrees that the identified material fits within the categories listed above, the special
master shall redact such material from the decision made available to the public. 42 U.S.C. §
300aa-12(d)(4); Vaccine Rule 18(b).
parents and guardians of C.J.M. filed a petition for compensation under the National Childhood
Vaccine Injury Act of 1986 (“the Vaccine Act”), 42 U.S.C. § 300a-10, et seq., as amended.
Petitioners alleged that their son suffered from “a table injury, known as an encephalopathy
and/or a causation-in-fact injury” as a result of receipt of five vaccinations, including the
diphtheria-tetanus-acellular-pertussis (“DTaP”), inactivated poliovirus (“IPV”), hemophilus
influenza B (“Hib”), pneumococcal conjugate (“Prevnar”) and rotovirus (“Rotateq”) vaccines.
Petition at ¶ 3. Petitioners alleged that their child received each of these four (4)-month vaccines
on March 31, 2009. Id. For the reasons set forth below, the special master finds that Petitioners
are not entitled to compensation and dismisses their case.

I.       BACKGROUND

        On March 28, 2009, three days before Petitioners’ child received the vaccinations at
issue, the child was taken to the Emergency Department at J.C. Blair Memorial Hospital after
falling off of a table. See P’s Ex. 19 at 35. The examination and CT scan at the hospital were
normal, except for an abrasion, a contusion on the chin, and persistent irritability. Id. at 36. On
March 31, 2009, C.J.M. received the five vaccinations at issue. See P’s Ex. 5 at 2. Petitioners
claimed that the following day they began to notice their child “going into blank stares.” Petition
at ¶ 4. However, it was not until May 9, 2009, nearly six weeks later, that C.J.M. was taken to
Lewistown Hospital Emergency Department after suffering from an apneic episode. See P’s Ex.
3 at 10. Over the course of the next few years, C.J.M. experienced, inter alia, more staring
episodes, partial seizures, apnea, hypotonia, and developmental delay. See, e.g., P’s Ex. 3 at 10;
P’s Ex. 17 at 86-91, 518, 585-90.

        Petitioners filed the last set of medical records pertaining to their Petition on April 3,
2013. On December 4, 2012, the Court issued an Order directing that Petitioners file an expert
report by March 13, 2013. After the Court granted several motions for extensions of time,
Petitioners filed a status report on June 24, 2013 indicating they were unable to obtain an expert
report.

        Subsequently, on July 18, 2013, Petitioners filed a Motion for Ruling on the Record
(“Motion for Ruling”). On July 23, 2013, Respondent filed a response to Petitioners’ motion
indicating that Respondent did not oppose the motion, and asserting that the record is insufficient
to determine that Petitioners have carried their burden of proof and shown they are entitled to
compensation under the Vaccine Act. This matter is now ready for decision.

       Having considered Petitioners’ motion, the special master hereby grants Petitioners’
motion for a ruling on the record and enters this ruling based upon the entire record. Vaccine
Rule 8(d).

II.    DISCUSSION

        To be awarded compensation under the Vaccine Act, 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 the vaccinations in question, or 2) that any of his medical problems were
actually caused or significantly aggravated by the vaccination(s) at issue. See 42 U.S.C. §§

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300aa-11(c)(1) and 300aa-13(a)(1)(A).

        Actual causation must be demonstrated by preponderant evidence demonstrating that the
subject vaccination caused the petitioner’s injury by showing: “(1) a medical theory causally
connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that
the vaccination was the reason for the injury; and (3) a showing of a proximate temporal
relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418
F.3d 1274, 1278 (Fed. Cir. 2005). The logical sequence of cause and effect must be supported
by “reputable medical or scientific explanation.” Id., quoting Grant v. Sec'y of Health & Human
Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992). A petitioner may not be awarded compensation
based on petitioner’s claims alone. 42 U.S.C. § 300aa-13(a)(1). Rather, the petition must be
supported by either medical records or by the opinion of a competent physician. Id.

           An examination of the record demonstrates that it does not contain medical records or a
medical opinion sufficient to demonstrate that Petitioners’ child, C.J.M., was injured by any of
the vaccinations at issue. First, Petitioners have not established that C.J.M. has suffered a “Table
Injury” associated with any of the vaccinations in question. Petitioners claim that as a result of
the vaccinations their child received on March 31, 2009, the child suffered “a Table injury
known as an encephalopathy.” Petition at ¶ 3. Encephalopathy-related injuries are not presumed
to be caused by four of the five vaccinations that C.J.M. received, including the Hib, IPV,
Prevnar and Rotateq vaccines. Encephalopathy is an injury on the Vaccine Table that is
presumed to be caused by the DTaP vaccination, but only if the following two requirements are
satisfied: (1) the encephalopathy symptoms must occur within the first seventy-two (72) hours
after the DTaP vaccination, and (2) the recipient must suffer an acute encephalopathy, described
as an encephalopathy that is “sufficiently severe as to require hospitalization (whether or not
hospitalization occurred).” 42 C.F.R. 100.3. For children less than eighteen (18) months of age,
which includes Petitioners’ child, an acute encephalopathy is “indicated by a significantly
decreased level of consciousness lasting for at least 24 hours.”

          Although Petitioners claimed that C.J.M. was “going into blank stares” the day after
receipt of the vaccinations, they failed to provide evidence that these staring episodes were
symptoms of an acute encephalopathy as defined by the Vaccine Act. And, Petitioners have not
provided evidence of any other symptoms of an encephalopathy occurring within seventy-two
(72) hours after the vaccinations, nor have they presented evidence of “a significantly decreased
level of consciousness lasting for at least 24 hours.” Therefore, Petitioners have not established
that C.J.M. has suffered a “Table Injury” connected with one of the vaccinations he received.

          Second, Petitioners have not established that C.J.M.’s injuries were caused in-fact by
the receipt of the vaccinations. The medical records show that three days prior to being
vaccinated, C.J.M. was taken to the hospital after falling off of a table. See P’s Ex. 19 at 35.
Thus, Petitioners have not put forth evidence to demonstrate that C.J.M.’s injuries were not
caused in-fact by the fall that he sustained.

          Moreover, none of C.J.M.’s treating physicians opined that the injuries were directly
caused by the vaccinations that he received. Finally, Petitioners have not submitted an expert
report or medical literature. By filing this Motion for Ruling on the Record, Petitioners have

                                                 3
indicated that they will not submit an expert report supporting their claim that the vaccinations
their child received on March 31, 2009 caused the injuries. To prevail in this matter, Petitioners
cannot rely on their statements alone. See 42 U.S.C. §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1).
Rather, the petition must be supported by either medical records or by the opinion of a competent
physician, generally a medical expert. See 42 U.S.C. § 300aa-13(a)(1). Based on the review of
the record as a whole, Petitioners have failed to prove by preponderant evidence that he suffered
a “Table Injury” or that his condition was “actually caused” by the vaccinations he received on
March 31, 2009.

        Petitioners’ claim for compensation is DENIED, and this case is DISMISSED for
insufficient proof. In the absence of a motion for review, the Clerk of the Court is directed to
enter judgment accordingly. 2

       IT IS SO ORDERED.
                                                     /s/ Daria J. Zane
                                                     Daria J. Zane
                                                     Special Master




2
  This document constitutes a final “decision” in this case pursuant to 42 U.S.C. § 300aa-
12(d)(3)(A). Unless a motion for review of this decision is filed within 30 days, the Clerk of the
Court shall enter judgment in accordance with this decision. Pursuant to Vaccine Rule 11(a), the
parties can expedite entry of judgment by each party filing a notice renouncing the right to seek
review by a United States Court of Federal Claims judge.
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