In the United States Court of Federal Claims
                          OFFICE OF SPECIAL MASTERS


*********************
LEANNA BABB,         *
                     *                              No. 15-195V
      Petitioner,    *                              Special Master Christian J. Moran
                     *
v.                   *
                     *                              Filed: July 12, 2018
SECRETARY OF HEALTH  *
AND HUMAN SERVICES,  *                              Entitlement, dismissal, headaches
                     *
      Respondent.    *
*********************

Ronald C. Homer & Christina M. Ciampolillo, Conway, Homer, P.C., Boston,
MA, for petitioner;
Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for
respondent.

           UNPUBLISHED DECISION DENYING COMPENSATION1

       Leanna Babb filed a petition, under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa—10 through 34, on March 2, 2015. The petition ultimately
alleged that the tetanus-diphtheria (“TD”) and hepatitis A/B vaccines she received
on May 28, 2013, significantly aggravated her pre-existing migraine headaches or,
in the alternative, caused her idiopathic intracranial hypertension. See Petition,
filed Mar. 2, 2015; exhibit 24 at 6; exhibit 29 at 4; exhibit 35 at 2. The information
in the record, however, does not show entitlement to an award under the Program.




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         The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
        I.   Procedural History

      Ms. Babb’s case was initially assigned to Special Master Millman, who
oversaw the submission of evidence and the scheduling of a two-day entitlement
hearing in October 2018.

       On January 26, 2018, this case was transferred to the undersigned. The
undersigned reviewed case materials and issued a detailed order for pre-hearing
submissions. The undersigned also held a status conference on April 18, 2018, to
prepare for the entitlement hearing. Ms. Babb confirmed that she was also
pursuing a significant aggravation claim and that one of her experts, Dr. Chen, had
at least referenced significant aggravation in his reports. Due to Dr. Chen’s lack of
explanation for significant aggravation in his reports, Ms. Babb was afforded the
opportunity to file a supplemental expert report and pre-hearing brief to bolster her
case. Order, issued Apr. 26, 2018.

      Ms. Babb did not file a supplemental expert report and instead filed a
Motion for a Decision Dismissing the Petition on July 2, 2018. On the same day,
respondent filed a response stating that he did not object to Ms. Babb’s motion.
This matter is now ready for adjudication.

       II.   Analysis

      By seeking dismissal of her petition, Ms. Babb implicitly conceded that she
has not submitted sufficient evidence to be awarded compensation on her vaccine
claim on either cause of action, causation-in-fact or significant aggravation.

        To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that petitioner suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
petitioner’s vaccinations, or 2) that petitioner suffered an injury that was actually
caused or significantly aggravated by a vaccine. See §§ 300aa—13(a)(1)(A) and
300aa—11(c)(1). An examination of the record did not uncover any evidence that
petitioner suffered a “Table Injury.” Further, the record does not contain other
persuasive evidence indicating that petitioner’s injuries are vaccine-caused or
significantly aggravated by a vaccine.

      Under the Act, a petitioner may not be given a Program award based solely
on petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa—13(a)(1).

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In this case, because the medical records do not sufficiently support petitioner’s
claim, a medical opinion must be offered in support. Though medical opinions
have been offered, they are not persuasive.

       For the medical theory, petitioner’s first expert report by Dr. Chen opined
that the vaccinations triggered a chronic injury to her nervous system. Exhibit 24
at 7. During a status conference, respondent noted that a similar theory was
previously found unpersuasive to the undersigned. See McGuire v. Sec’y of
Health & Human Servs., 2015 WL 6150598 (Fed. Cl. Spec. Mstr. Sept. 18, 2015);
order, issued Feb. 19, 2016.

      Dr. Chen ultimately opined that a dual process occurred, alternatively
claiming that: (1) the vaccines significantly aggravated Ms. Babb’s pre-existing
migraine headaches and (2) that the vaccines caused the onset of a new type of
headache due to intracranial hypertension. Exhibit 29 at 1-2.

       The undersigned noted during the April 18, 2018 status conference that a
presentation of alternative causes of action is often unpersuasive. See Order,
issued Apr. 26, 2018. The undersigned also indicated that Ms. Babb’s experts had
not effectively distinguished her pre-existing headaches from the injuries she
alleged resulted from the vaccinations. Id. In regard to significant aggravation, the
undersigned pointed out that Ms. Babb’s experts had not addressed how her
headaches would have developed but for the vaccinations. Id. ; exhibit 24 at 7;
exhibit 27 at 7. However, despite the opportunity to do so, Ms. Babb did not file
another supplemental expert report by Dr. Chen or Dr. Levy to address the
undersigned’s concerns.

      Accordingly, the record in this case suggests Ms. Babb failed to
demonstrate that she suffered a “Table Injury,” or that the vaccinations “actually
caused” or “significantly aggravated” her injuries.

     Thus, the Motion for Decision is GRANTED and this case is
DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.




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     Any questions may be directed to my law clerk, Andrew Schick, at (202)
357-6360.

      IT IS SO ORDERED.

                                          s/Christian J. Moran
                                          Christian J. Moran
                                          Special Master




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