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

*********************
CAROLYN and STEPHEN WALL, *
on behalf of their minor child, G.W., *
                                      *   No. 17-583V
                    Petitioners,      *   Special Master Christian J. Moran
                                      *
v.                                    *
                                      *   Filed: August 19, 2020
SECRETARY OF HEALTH                   *
AND HUMAN SERVICES,                   *   Entitlement; dismissal.
                                      *
                    Respondent.       *
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Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioners;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, D.C., for
respondent.

          UNPUBLISHED DECISION DENYING COMPENSATION 1

       Carolyn and Stephen Wall alleged that the human papillomavirus (“HPV”)
their child, G.W., received on September 25, 2015, caused her to develop postural
tachycardia syndrome (“POTS”), which was then worsened by the influenza
(“flu”) vaccination she received on December 28, 2015. Pet., filed May 1, 2017, at
Preamble; ¶¶ 23, 27. On July 29, 2020, Mr. and Mrs. Wall moved for a decision
dismissing their petition.

         I.   Procedural History

       Carolyn and Stephen Wall (“petitioners”) filed a petition on behalf of their
child, G.W., on May 1, 2017. After petitioners filed their initial medical records,

1
  The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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.
the Secretary filed his Rule 4(c) report on August 24, 2017, contesting entitlement.
A status conference was then held on August 31, 2017, during which an onset
dispute was identified. Petitioners were then ordered to file an onset affidavit, as
well as additional medical and school records.

       After additional records were filed, petitioners filed expert reports
supporting their claim from Dr. Miglis and Dr. Steinman. In response, the
Secretary filed expert reports from Dr. Boris and Dr. MacGinnitie. Petitioner then
filed a statement from G.W.’s treating physician, Dr. Luther, and a supplemental
expert report from Dr. Miglis. The expert report phase of the case concluded with
supplemental expert reports from Dr. Boris and Dr. MacGinnitie filed by the
Secretary.

       The undersigned then issued an order for briefs in advance of potential
adjudication on June 11, 2020, which was then reviewed in a status conference
held on June 30, 2020. On July 29, 2020, petitioners moved for a decision
dismissing their petition, stating that, in light of litigation currently being initiated
against Merck involving injuries to Gardasil vaccine recipients, petitioners “wish
to pursue a third party action in district court against Merck directly.” Pet’rs’ Mot.,
filed July 29, 2020, ¶ 3. Petitioners add that “[t]his choice should not be viewed in
any way that Petitioners do not believe in the merits of their claim,” but that they
wish to have a judgment entered against them so that they may pursue a separate
civil action.

not file a response to this motion. This matter
is now ready for adjudication.

       II.   Analysis

       To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), a petitioner 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 vaccinations, or 2) that the vaccinee
suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A)
and 300aa-11(c)(1). 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, petitioners filed medical records and expert reports in support of
their claim, but nonetheless, wish to have their claim dismissed and judgment
entered against them. Though petitioners filed this motion pursuant to 42 U.S.C.

                                            2
§ 300aa—21(a) (regarding voluntary dismissal), the undersigned will construe this
as a motion filed pursuant to 42 U.S.C. § 300aa—21(b) (regarding involuntary
dismissal), given petitioners’ clear intent that a judgment issue in this case,
protecting their right to file a civil action in the future. See Pet’rs’ Mot., filed July
29, 2020, ¶ 4.

      To conform to section 12(d)(3), a decision must “include findings of fact and
conclusions of law.” Here, although the parties were in the process of presenting
arguments, the evidence weighs against a finding that G.W. suffered from POTS.
Without a showing that the vaccinee suffered the injury that the vaccine allegedly
caused, the remainder of the case becomes moot. See Broekelschen v. Sec’y of
Health and Human Servs., 

, 1346 (Fed. Cir. 2010). Accordingly, the
undersigned is not required to evaluate whether the HPV vaccine can cause POTS.

      Thus, the Motion for Decision is GRANTED and this case is
DISMISSED WITH PREJUDICE for insufficient proof. The Clerk shall
enter judgment accordingly. See Vaccine Rule 21(b).

      IT IS SO ORDERED.

                                                s/Christian J. Moran
                                                Christian J. Moran
                                                Special Master




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