Not to be published

DECISION DISMISSING CASE1

BRIAN H. CORCORAN, Special Master.

On November 16, 2017, Mark Olsavicky, Jr., and Autumn Olsavicky filed a petition as administrators of the estate of their deceased infant son, J.O., seeking compensation under the National Vaccine Injury Compensation Program ("Vaccine Program").2 Petitioners alleged that the vaccines J.O. received on November 18, 2015—which included Diphtheria-Tetanus-acellular Pertussis, Hepatitis B, haemophilus influenza B conjugate, Pneumococcal PCV 13, polio, and RotaTeq—caused his death two days after vaccination, on November 20, 2015. Pet. at 1. Petitioners presented two theories of causation: that J.O. experienced an acute encephalopathy which led to his death; or, in the alternative, that he experienced hypoxia due to an acute vaccination-induced cytokine cascade, which was a substantial factor in bringing about his death. Id. at 11-12.

During a status conference on August 13, 2018, I expressed doubts about the claim's viability, noting that several past Vaccine Program decisions had addressed similar claims involving Sudden Infant Death Syndrome ("SIDS") and uniformly found in favor of the Respondent. I therefore directed Petitioners to differentiate their claim from these past SIDS decisions. Order at 1, dated Aug. 13, 2018 (ECF No. 16). The parties filed briefs in support of their respective positions in November 2018. See Br. in Support of the Basis of Pet'rs' Claim, filed Nov. 5, 2018 (ECF No. 19) ("Pet. Br."); Resp't's Resp. to Br. in Support of the Basis of Pet'rs' Claim, filed Nov. 29, 2018 (ECF No. 20). In their brief, Petitioners proposed a different theory of causation, alleging that J.O. experienced a vaccine-induced enlargement of the thymus, which obstructed his windpipe and caused his death. Pet. Br. at 8.

Following a status conference on April 1, 2019, I expressed concerns about this novel theory of causation put forth by the Petitioners, as my own preliminary research (which, I noted, does not constitute evidence in this case) revealed that it likely had been discredited many decades ago. See Order at 2, dated Apr. 1, 2019 (ECF No. 21). Accordingly, I directed Petitioners to file a status report by the end of that month indicating whether they wished to offer an expert report in support of their theory of causation despite my concerns about its viability. Id. Unable to secure expert support, Petitioners instead filed a Motion seeking dismissal of their claim on May 31, 2019. See generally Pet'r's Mot. for Decision Dismissing Pet. (ECF No. 24).

To receive compensation under the Vaccine Act, a petitioner must prove either (1) that he suffered a Table injury, or (2) that he suffered an injury that was actually caused by a vaccine. See Sections 11(c)(1), 13(a)(1)(A). However, J.O. did not suffer a Table injury, and the record does not contain a medical expert's opinion or any other persuasive evidence indicating that J.O.'s death could have been caused by any of the vaccines he received on November 18, 2015.

J.O.'s premature passing was certainly a devastating tragedy. However, there is insufficient evidence for Petitioners to meet their burden of proof. In keeping with Section 11(c)(1)(A), their claim therefore cannot succeed and must be dismissed.

Accordingly, I hereby DISMISS Petitioners' case. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of this decision.3

IT IS SO ORDERED.