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

*********************
SHARMORA PHILLIPS, as                 *
Executor of the Estate of P.N.H., a   *
deceased minor,                       *
                                      *     No. 18-15V
                   Petitioner,        *     Special Master Christian J. Moran
                                      *
v.                                    *
                                      *     Filed: April 15, 2020
SECRETARY OF HEALTH                   *
AND HUMAN SERVICES,                   *     Entitlement; SIDS; dismissal.
                                      *
                   Respondent.        *
*********************
Jessica A. Wallace, Siri & Glimstad, LLP, New York, NY, for petitioner;
Robert P. Coleman, III, United States Dep’t of Justice, Washington, D.C., for
respondent.

          UNPUBLISHED DECISION DENYING COMPENSATION1

       Sharmora Phillips filed a petition on behalf of her deceased minor child
P.N.H. under the National Childhood Vaccine Injury Act, 42 U.S.C. §300a-10
through 34 (2012) on January 3, 2018. The petition alleged that P.N.H. suffered
death as a result of the DTaP, Polio, Hep A, HIB, pneumococcal conjugate, and
rotavirus vaccinations he received on May 19, 2016. Pet., filed Jan. 3, 2018, ¶¶ 7,
14. The information in the record, however, does not show entitlement to an award
under the Program.




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.
        I.   Procedural History

        Ms. Phillips filed her petition on January 3, 2018. After Ms. Phillips filed
all relevant medical records, the Secretary filed his Rule 4(c) report on March 27,
2018, contesting entitlement.

       Ms. Phillips then filed an expert report and supplemental expert report from
Dr. Douglas Miller on January 28, 2019, and March 26, 2019, respectively. Dr.
Miller’s theory was identical to that asserted in Boatman v. Sec’y of Health &
Human Servs., 

(Fed. Cir. 2019), a case which dismissed this theory
as being only “plausible” and thus not meeting petitioner’s statutory burden of
proof. In light of this, as status conference was held in this case on January 9,
2020, in which the issue was raised that petitioner could no longer successfully
pursue this theory. Petitioner was then unable to locate another expert to support
an alternative theory.

       Therefore, Ms. Phillips moved for a decision dismissing her petitioner on
April 14, 2020. In this motion, Ms. Phillips stated that she has been “unable to
locate an expert to support the alternative theory,” but “does intent to protect her
rights to file a civil action in the future.” Pet’r’s Mot., filed April 14, 2020, ¶¶ 12,
16. The Secretary did 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, petitioners must prove either 1) that petitioner suffered a “Table
Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to
one of petitioner’s vaccinations, or 2) that petitioner suffered an injury that was
actually caused or significantly aggravated 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 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). If the medical records do not sufficiently support a petitioner’s
claim, a medical opinion must be offered in support.

      In her April 14, 2020 motion, Ms. Phillips admitted that she would be unable
to provide evidence sufficient to establish her claim and prove entitlement to
compensation. Pet’r’s Mot., filed April 14, 2020, ¶ 11; see also Copenhaver v.
Sec’y of Health & Human Servs., No. 13-1002V, 

(Fed. Cl.

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Spec. Mstr. May 31, 2016) (finding Dr. Miller’s theory not persuasive), mot. for
rev. denied, 

(2016). Though Ms. Phillips filed this motion
pursuant to 42 U.S.C. § 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 Ms. Phillips’s clear intent that
judgment issue in the case, protecting her right to file a civil action in the future.
See Pet’r’s Mot., ¶¶ 14, 16.

       In light of Ms. Phillips’s concession that this case is not compensable and a
review of the entire record, the undersigned finds that Ms. Phillips has not
established that the DTaP, Polio, Hep B, HIB, pneumococcal conjugate, and/or
rotavirus vaccines caused P.N.H.’s death.

     Thus, the Motion for Decision is GRANTED and this case is
DISMISSED for insufficient proof. The Clerk shall enter judgment
accordingly.

      Any questions may be directed to my law clerk, Haley Hawkins, at (202)
357-6360.

      IT IS SO ORDERED.

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




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