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

********************                 *
TRUONG NGUYEN as parent and          *      No. 14-593V
natural guardian of T.A.N.,          *      Special Master Christian J. Moran
a minor child,                       *
                                     *      Filed: May 6, 2015
                  Petitioner,        *
                                     *      Decision on the record; insufficient
v.                                   *      proof of causation; diphtheria-tetanus-
                                     *      acellular pertussis (DTaP); inactivated
SECRETARY OF HEALTH                  *      poliovirus (IPV); Hepatitis B;
AND HUMAN SERVICES,                  *      haemophilus influenzae type b;
                                     *      rotavirus; pneumococcal conjugate;
                  Respondent,        *      seizures; right-sided weakness;
                                     *      vision loss.
******************** *
Anne C. Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioner;
Ryan Daniel Pyles, United States Dep’t of Justice, Washington, D.C., for
respondent.

          UNPUBLISHED DECISION DENYING COMPENSATION 1

       On July 11, 2014, Truong Nguyen filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012), on
behalf of his minor son, T.A.N. In his petition. Mr. Nguyen alleged that that a
diphtheria-tetanus-acellular pertussis (DTaP), inactivated poliovirus (IPV),
Hepatitis B, haemophilus influenzae type b, rotavirus, and/or a pneumococcal
conjugate vaccine administered to T.A.N. on August 19, 2011, caused T.A.N. to
suffer seizures with resulting sequelae including right-sided weakness and vision


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          The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913
(Dec. 17, 2002), requires that the Court post this ruling 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.
loss in the right eye. The information in the record, however, does not show
entitlement to an award under the Program.

        I.   Procedural History

      Mr. Nguyen’s July 11, 2014 petition did not include medical records as
required by 42 U.S.C. § 300aa—11(c). Following an extension of time, Mr.
Nguyen filed medical records (exhibits 1-5, 7-18) and his affidavit (exhibit 6) in
support of his claim on October 17, 2014. On this same date, Mr. Nguyen filed for
authorization of subpoena for additional records from New York Presbyterian and
Arnold Palmer Hospitals.

       Mr. Nguyen filed the records from New York Presbyterian on December 29,
2014 (exhibits 19-22). A status conference was held on January 7, 2017, to discuss
Mr. Nguyen’s progress subpoenaing records from Arnold Palmer Hospital. During
this conference, Mr. Nguyen reported that he planned to file an action in local
court to enforce the subpoena served on the hospital for records.

      Mr. Nguyen filed the remaining records from Arnold Palmer Hospital
(exhibits 23-26) and a statement of completion on January 26, 2015. Due to the
volume of T.A.N.’s medical records, respondent requested additional time to
review them. Resp’t’s Rep., filed Feb 25, 2015.

       Respondent filed her Rule 4(c) report on March 23, 2015. In her report,
respondent concluded that petitioner failed to fulfill the criteria for a Vaccine Table
injury and failed to demonstrate by a preponderance of the evidence that T.A.N.’s
seizure and sequela were caused by vaccines he received on August 19, 2011.
Resp’t’s Rep., filed Mar. 23, 2015, at 4-5.

      During a status conference held on April 1, 2015, Mr. Nguyen reported that
he had retained an expert witness to opine on his case and requested 30 days to file
his expert report. Order, issued, Apr. 2, 2015.

        On May 4, 2015, Mr. Nguyen filed a motion for decision on the record
stating that “the case has ceased to have a reasonable basis to proceed.” Pet’r’s
Mot., filed May 4, 2015, at 3 ¶8. Attached to his motion, Mr. Nguyen included a
letter from his expert, Dr. Ryan J. Felling, a neurologist. Dr. Felling’s letter
indicated that his review of the records found “[a]side from the temporal
association with [T.A.N.’s] vaccines, there is no additional evidence to support a
causal relationship.” Id. at 2, 5.

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      In informal communications with respondent, respondent indicated that she
would not file a response and will rest on her Rule 4 report. Accordingly, this case
is now ready for adjudication.

        II.   Analysis

       To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), petitioner must prove either 1) that T.A.N.
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to his vaccinations, or 2) that he suffered an injury that was actually
caused 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 T.A.N. suffered a
“Table Injury.” Thus, Mr. Nguyen is necessarily pursuing a causation-in-fact
claim.

       Under the Act, a 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. § 300aa-13(a)(1). In
this case, because the medical records and opinion of Dr. Felling do not support
Mr. Nguyen’s claim.

       Accordingly, it is clear from the record in this case that Mr. Nguyen has
failed to demonstrate either that T.A.N. suffered a “Table Injury” or that his
injuries were “actually caused” by a vaccination. Thus, this case is dismissed for
insufficient proof. The Clerk shall enter judgment accordingly.

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

        IT IS SO ORDERED.

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




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