             In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                   Filed: August 29, 2018

* * * * * * * * * * * * * *                 *
KIMBERLY BERTOLUCCI and                     *      UNPUBLISHED
ARTHUR JOSEPH MCCAULEY III,                 *
Parents and Guardians of E.M., a Minor,     *      No. 15-1573V
                                            *
              Petitioners,                  *      Chief Special Master Dorsey
                                            *
v.                                          *      Pneumococcal Conjugate (Prevnar 13);
                                            *      Diphtheria-Tetanus-acellular Pertussis
SECRETARY OF HEALTH                         *      (DTaP); Haemophilus Influenza B (HiB);
AND HUMAN SERVICES,                         *      Hepatitis B (Hep B); Rotavirus;
                                            *      Inactivated Polio Vaccine (IPV);
              Respondent.                   *      Reactive Airway Disease.
                                            *
* * * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, N.Y., for petitioners.
Lynn E. Ricciardella, U.S. Department of Justice, Washington, D.C., for respondent.

                                           DECISION1

        On December 23, 2015, Kimberly Bertolucci and Arthur Joseph McCauley III
(“petitioners”) filed a petition under the National Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-10 et seq. (2012) (“Vaccine Act”).2 Petitioners stated that their child, E.M., received
vaccines for Diphtheria-Tetanus-acellular Pertussis (DTaP), Hepatitis B (Hep B), inactivated
polio (IPV), and rotavirus on December 28, 2012, and vaccines for DTaP, IPV, Haemophilus
influenza B (HiB), pneumococcal conjugate, and rotavirus on March 7, 2013. Petition at 4-5.

1
  Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
she will delete such material from public access.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as
amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in
this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.


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Petitioners alleged that as a result of these vaccines, E.M. suffered from reactive airway disease.
Id. at 7.

        On August 28, 2018, petitioners filed a motion for a decision dismissing the petition.
Motion for Decision dated Aug. 28, 2018 (ECF No. 68). Although petitioners maintained their
belief that the vaccines identified in their petition caused the alleged injuries to E.M., they
concluded that they would not be able to establish entitlement to compensation in the Vaccine
Program. Id. Petitioners affirmed that they understand that such a decision will end their rights
in the Vaccine Program. Id. They also noted that they anticipate electing to reject the Vaccine
Program judgment and filing a civil action. Id.

        To receive compensation under the Program, petitioners must prove either: 1) that E.M.
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to a vaccination, or 2) that E.M.’s injuries were 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
E.M. suffered a “Table Injury,” nor do petitioners allege that she suffered a “Table Injury.”
Further, the record does not contain any persuasive evidence indicating that E.M.’s reactive
airway disease, or any other injuries, were caused by the vaccinations she received on December
28, 2012, or March 7, 2013.

        Under the Vaccine Act, petitioners may not be awarded compensation based solely on
petitioners’ claims. 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, the medical records do not
establish causation. Although petitioners filed an expert report from Drs. Judy Mikovits and
Francis Ruscetti, as well as a supplemental report from Dr. Karyemaitre Aliffe, the undersigned
found these reports unpersuasive. As she discussed with the parties during a status conference,
the undersigned found the report from Dr. Mikovits and Ruscetti “generally confusing and
unintelligible,” and she observed that Dr. Aliffe’s report was “often conclusory” and “provide[d]
no mechanistic evidence to support a plausible causation theory.” See Order dated June 6, 2018
(ECF No. 63). After a thorough review of these reports, as well as the expert report submitted by
respondent from Dr. Andrew MacGinnitie, the undersigned concluded that “petitioners’ medical
theory of causation falls decidedly short of the standards set forth in Althen.” Id. at 2.

       Accordingly, it is clear from the record in this case that petitioners have failed to
demonstrate either that E.M. suffered a “Table Injury” or that her injuries were caused-in-fact by
her December 28, 2012 or March 7, 2013 vaccinations.

       Therefore, this case is dismissed for insufficient proof. In the absence of a motion for
review,3 the Clerk of the Court SHALL ENTER JUDGMENT in accordance with this decision.


       IT IS SO ORDERED.


3
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.


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    s/Nora Beth Dorsey
    Nora Beth Dorsey
    Chief Special Master




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