Filed: Nov. 20, 2017
Latest Update: Nov. 20, 2017
Summary: Not to be Published DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1 BRIAN H. CORCORAN , Special Master . On February 9, 2017, Brandi Kostal filed a petition seeking compensation under the National Vaccine Injury Compensation Program. 2 The Petition alleged that the Tetanus-diphtheria-acellular pertussis ("Tdap") vaccine received on April 8, 2014 and the Measles, Mumps, Rubella ("MMR") vaccine received on April 10, 2014, caused a significant aggravation to her pre-existing idiopathic t
Summary: Not to be Published DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1 BRIAN H. CORCORAN , Special Master . On February 9, 2017, Brandi Kostal filed a petition seeking compensation under the National Vaccine Injury Compensation Program. 2 The Petition alleged that the Tetanus-diphtheria-acellular pertussis ("Tdap") vaccine received on April 8, 2014 and the Measles, Mumps, Rubella ("MMR") vaccine received on April 10, 2014, caused a significant aggravation to her pre-existing idiopathic th..
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Not to be Published
DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1
BRIAN H. CORCORAN, Special Master.
On February 9, 2017, Brandi Kostal filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 The Petition alleged that the Tetanus-diphtheria-acellular pertussis ("Tdap") vaccine received on April 8, 2014 and the Measles, Mumps, Rubella ("MMR") vaccine received on April 10, 2014, caused a significant aggravation to her pre-existing idiopathic thrombocytopenic purpura ("ITP'), and also a table claim based on her ITP. See Petition ("Pet.") (ECF No. 1) at 1.
After filing medical records in mid-March 2017, the parties filed the Joint Statement of Completion on May 17, 2017. ECF No. 12. Thereafter, Respondent filed a Rule 4(c) Report on July 14, 2017, contesting Petitioner's right to damages, and requesting dismissal of the claim (ECF No. 13).
I subsequently issued an order on July 24, 2017, directing Petitioner to indicate if she intended to continue with her table claim by August, 25, 2017, and also propose a deadline for an expert to offer an opinion on her non-table claim. On August 25, 2017, after Petitioner requested an extension of time to supplement the record, I issued an additional order directing Petitioner to show cause as to why her table claim should not be dismissed. I also directed Petitioner to file an expert report in support of her non-table claim on or before November 24, 2017. Petitioner responded to the show cause order on September 29, 2017, stating that she did not object to the dismissal of her table claim (ECF No. 16). Thereafter, I issued an order dismissing Petitioner's table claim on October 4, 2017. ECF No. 17.
On November 20, 2017, Petitioner filed the present motion to dismiss her non-table claim, indicating that her retained expert cannot offer a supporting opinion, and expressing her view she therefore is unlikely to be able to prove entitlement to compensation in this case. See Motion for Decision, dated Nov. 20, 2017 (ECF No. 20).
To receive compensation under the Vaccine Program, a petitioner must prove either (1) that she suffered a "Table Injury" — i.e., an injury falling within the Vaccine Injury Table — corresponding to one of her vaccinations, or (2) that she suffered an injury that was actually caused by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). The table claim previously asserted in this case, however, has been dismissed. Moreover, under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely on her claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent medical expert. Section 13(a)(1). In this case, however, there is insufficient evidence in the record for Petitioner to meet her burden of proof. Petitioner's claim therefore cannot succeed and must be dismissed. Section 11(c)(1)(A).
Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
