Filed: Jun. 29, 2018
Latest Update: Jun. 29, 2018
Summary: Not to be Published DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1 KATHERINE E. OLER , Special Master . On July 20, 2016, Amy Carter filed a petition on behalf of her minor child, A.C., seeking compensation under the National Vaccine Injury Compensation Program, 2 alleging that A.C. "suffered a reaction which was diagnosed as Mental Developmental Delay, Mixed receptive-expressive language disorder[,] and Gross Motor Delay" as a result of her Diptheria, Tetanus, and Pertussis ("DTaP")
Summary: Not to be Published DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1 KATHERINE E. OLER , Special Master . On July 20, 2016, Amy Carter filed a petition on behalf of her minor child, A.C., seeking compensation under the National Vaccine Injury Compensation Program, 2 alleging that A.C. "suffered a reaction which was diagnosed as Mental Developmental Delay, Mixed receptive-expressive language disorder[,] and Gross Motor Delay" as a result of her Diptheria, Tetanus, and Pertussis ("DTaP") ..
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Not to be Published
DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1
KATHERINE E. OLER, Special Master.
On July 20, 2016, Amy Carter filed a petition on behalf of her minor child, A.C., seeking compensation under the National Vaccine Injury Compensation Program,2 alleging that A.C. "suffered a reaction which was diagnosed as Mental Developmental Delay, Mixed receptive-expressive language disorder[,] and Gross Motor Delay" as a result of her Diptheria, Tetanus, and Pertussis ("DTaP") and Haemophilus Influenza Type b ("Hib") vaccinations administered on July 22, 2013.3 Petition, ECF No. 1.
After filing medical records between the filing of her Petition and late March 2017, Petitioner filed her Statement of Completion on March 20, 2017. ECF No. 22. Thereafter, Respondent filed a Rule 4(c) Report on May 23, 2017, contesting Petitioner's right to damages, and suggesting that vaccine compensation be denied. ECF No. 26.
Petitioner was given deadlines to file her expert report, and on May 17, 2018, I held a status conference. See ECF No. 43. Petitioner filed a motion for interim attorney's fees and costs on May 24, 2018, and parties filed their respective responses.4 ECF Nos. 44-47. Petitioner filed a status report on June 20, 2018, notifying the Court of her intent to file a motion to dismiss. ECF No. 48. In light of Petitioner's status report, I ordered Petitioner to file a motion to dismiss by July 25, 2018.
On June 26, 2018, Petitioner filed the present motion for a decision to dismiss her non-table claim, indicating that "[a]fter working with expert physicians and after further evaluation of recent medical records, it is evident that [she] will be unable to prove that she is entitled to compensation in the Vaccine Program." See Petitioner's Motion to Dismiss, ECF No. 49.
To receive compensation under the Vaccine Program, a petitioner must prove either (1) that A.C. 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). 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.
