CHRISTIAN J. MORAN, Special Master.
Alfa Dia filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10
On October 6, 2014, Mr. Dia filed a petition seeking compensation for injuries he sustained following the receipt of the influenza vaccine administered on October 6, 2012. Mr. Dia filed an amended petition on July 9, 2015. The amended petition alleges that the vaccine administration caused Mr. Dia to suffer the following symptoms: rapid heartbeat, fever, chills, sweating, headaches, joint pain, and numbness, weakness and tingling in his lower extremities and eventually his entire body.
On August 12, 2015, respondent filed her Rule 4 report. She concluded that petitioners failed to demonstrate, by a preponderance of the evidence, that Mr. Dia had sustained an injury recognized within the criteria of the Vaccine Injury Table.
On October 26, 2015, petitioner filed an expert report by Phillip C. DeMio, M.D, which was approximately one and a half pages. Exhibit 49. Dr. DeMio's report, however, is not persuasive for many reasons. A key omission in Dr. DeMio's report is that he simply asserts that vaccines "can & do lead to entities including peripheral neuropathies." Exhibit 49 at 1. Within the four corners of this report, he does not propose any theory that would satisfy the first prong of Althen. In addition, although Dr. DeMio's background is in autism, he did not explain his qualifications to opine about peripheral neuropathy. These concerns were raised with the petitioner during a status conference held on _______________.
On February 2, 2016, petitioner stated he needed time to undergo QSART testing and a skin biopsy for intra-epidermal nerve fiber counting to facilitate an expert report. Mr. Dia was tested on March 29, 2016, and the test results were normal. Exhibit 53 at 1.
During a status conference held on September 7, 2016, petitioner's counsel requested time to confer with petitioner on how he would like to proceed with the case. On October 5, 2016, petitioner filed a motion entitled Motion for Ruling on the Record.
To receive compensation under the National Vaccine Injury Compensation Program, petitioners must prove either 1) that the vaccinee suffered a "Table Injury" — i.e., an injury falling within the Vaccine Injury Table — corresponding to one of the vaccinee's vaccinations, or 2) that the vaccinee suffered an injury that was actually caused by a vaccine.
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 do not support petitioner's claim, a medical opinion must be offered in support. Though a medical opinion has been offered, it is not persuasive.
Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate that he suffered a "Table Injury," or any injury.
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-6360.