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

*********************
NICO HERRON and PATIENCE             *
TURNER on behalf of minor child, *
X.E.,                                *      No. 17-700V
                                     *      Special Master Christian J. Moran
                  Petitioners,       *
                                     *
v.                                   *      Filed: June 10, 2019
                                     *
SECRETARY OF HEALTH                  *      Entitlement, dismissal
AND HUMAN SERVICES,                  *
                                     *
                  Respondent.        *
*********************
Gerald Edwin Rush, II, Rush Law and Consulting, APC, Los Angeles, CA, for
petitioner;
Heather L. Pearlman, United States Dep’t of Justice, Washington, DC, for
respondent.

           UNPUBLISHED DECISION DENYING COMPENSATION1

       Nico Herron and Patience Turner filed a petition on behalf of her child, X.E.,
under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa—10 through
34, on September 22, 2017. The petition alleged that the rotavirus vaccination that
X.E. received on May 15, 2015, caused X.E. to suffer intussusception or, in the
alternative, “some form of neurological syndrome or physical injury,” and lead to
his eventual death. See Petition, filed May 26, 2017, at 1-2. On May 21, 2019,
petitioners moved for a decision dismissing their petition.




       1
         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

       The petitioners filed a petition on behalf of X.E. on May 26, 2017. The
petitioners finished submitting X.E.’s medical records and a statement of
completion on January 17, 2018.

       On April 5, 2018, the Secretary filed his Rule 4 report opposing a finding of
entitlement. The Secretary noted that none of X.E.’s doctors had made a diagnosis
of intussusception and argued that the medical records did not support
intussusception. The Secretary pointed out that none of X.E.’s treating physicians
proposed a connection between the vaccination and X.E.’s injuries or his eventual
death. The Secretary also noted that the petitioners had not yet proposed a medical
theory for how the vaccinations caused X.E.’s injuries and his eventual death. The
Secretary requested that the petitioners file additional medical records.

       At the Rule 5 status conference on April 11, 2018, the petitioners advised
that they might also be pursuing a sudden infant death syndrome (“SIDS”) theory.
The undersigned informed petitioners, and petitioners’ counsel, who was new to
the Vaccine Program, of the generally unsuccessful history of SIDS claims in the
Vaccine Program. The petitioners were ordered to file the outstanding medical
records and other documents.

       After the petitioners submitted some outstanding records and concluded that
other records were not available, the case proceeded to the expert report phase.
The undersigned then issued expert instructions. Order, issued Aug. 22, 2018.
Following a September 10, 2018 status conference to discuss the instructions, the
petitioners’ expert report deadline was set for November 9, 2018.

       After obtaining several extensions of time for their expert report, the
petitioners advised that they were seeking a stipulated dismissal but had to wait
until the government shutdown ended to confer with the Secretary’s counsel.
Pet’rs’ Mot., filed Jan. 18, 2019. On April 20, 2019, petitioners filed a notice to
withdraw petition pursuant to 42 U.S.C. § 300aa-21(b). Because the petitioners
were not eligible to withdraw their petitioner pursuant to 42 U.S.C. § 300aa-21(b),
the petitioners were advised to pursue another option to conclude their case. On
May 21, 2019, the petitioners moved for a decision dismissing their petition. The
Secretary did not file a response.

      This matter is now ready for adjudication.



                                         2
       II.   Analysis

        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
X.E. suffered a “Table Injury.” Further, the record does not contain other
persuasive evidence indicating that X.E.’s injuries and eventual death are vaccine-
caused.

      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). If
the medical records do not sufficiently support a petitioner’s claim, a medical
opinion must be offered in support.

       In the instant motion, the petitioners stated that “they will be unlikely to
prove they are entitled to compensation in the Vaccine Program given the
challenges facing them in proving their case.” A review of the record supports the
conclusion that the petitioners have not proposed a medical theory connecting the
rotavirus to X.E. injuries or his eventual death and that X.E.’s treating physicians
did not relate the vaccinations to X.E.’s injuries or his eventual death.

        Accordingly, the undersigned finds that the petitioners have not
demonstrated that the rotavirus vaccination “actually caused” X.E.’s injuries or
lead to his eventual death.

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

     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


                                         3
