VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_12-vv-00479
Package ID: USCOURTS-cofc-1_12-vv-00479
Petitioner: S.N.
Filed: 2012-07-27
Decided: 2016-04-26
Vaccine: DTaP; Hib; IPV; Prevnar; rotavirus
Vaccination date: 2011-04-04
Condition: sudden infant death syndrome (SIDS) and death allegedly following DTaP, Hib, IPV, Prevnar, and rotavirus vaccines
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On July 27, 2012, Thuy Nguyen filed a Vaccine Program petition on behalf of her deceased minor child, S.N. She alleged that S.N. received diphtheria-tetanus-acellular pertussis (DTaP), haemophilus influenzae type b (Hib), inactivated poliovirus (IPV), Prevnar, and rotavirus vaccines on April 4, 2011. S.N. allegedly died the next day, April 5, 2011, from sudden infant death syndrome (SIDS). The public decision is brief and does not describe S.N.'s age, birth history, pre-vaccination health, the events of April 4 and April 5, how S.N. was found, emergency treatment, autopsy findings, or any other clinical details. It also does not summarize the respondent's medical defense in detail. Petitioner had filed expert reports from Dr. M. Eric Gershwin and Dr. Douglas Miller. However, by April 2016, petitioner no longer believed she could prove entitlement in light of recent SIDS litigation and Chief Special Master Nora Beth Dorsey's recent ruling in Cozart v. Secretary of Health and Human Services. On April 21, 2016, petitioner moved for a decision dismissing the petition, stating she understood a dismissal judgment would end S.N.'s Vaccine Program rights and that she wished to preserve her right to file a civil action. Respondent did not oppose dismissal, except to preserve the right to oppose any later application for attorneys' fees and costs. Chief Special Master Dorsey granted the motion and dismissed the petition on April 26, 2016. She found no evidence that S.N. had suffered a Table injury and no persuasive evidence that the April 4, 2011 vaccines had caused S.N.'s death. Because the medical records were insufficient to establish entitlement and the expert reports were not persuasive after Cozart, petitioner had not met the Vaccine Act's proof requirements. No compensation was awarded. Petitioner was represented by Anne C. Toale of Maglio Christopher & Toale in Sarasota, Florida. Respondent counsel was Lara Englund of the United States Department of Justice.

Theory of causation field:
DTaP, Hib, IPV, Prevnar, and rotavirus vaccines administered Apr. 4, 2011 to minor S.N.; alleged sudden infant death syndrome (SIDS) and death Apr. 5, 2011. DISMISSED for insufficient proof; no compensation. The public decision does not describe S.N.'s age, birth history, pre-vaccination health, the events of April 4 and April 5, how S.N. was found, emergency treatment, autopsy findings, or any other clinical details. It also does not summarize the respondent's medical defense in detail. Petitioner filed expert reports from Dr. M. Eric Gershwin and Dr. Douglas Miller, but moved for dismissal after recent SIDS litigation and Chief Special Master Dorsey's ruling in Cozart v. Secretary of Health and Human Services. Chief Special Master Dorsey found no Table injury, no persuasive evidence of vaccine causation, and expert opinions not persuasive in light of Cozart. Chief SM Nora Beth Dorsey dismissed Apr. 26, 2016. Petitioner attorney: Anne C. Toale, Maglio Christopher & Toale, Sarasota FL. Respondent attorney: Lara Englund, United States Department of Justice.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_12-vv-00479-0
Date issued/filed: 2016-05-17
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 04/26/2016) regarding 67 DECISION of Special Master Signed by Chief Special Master Nora Beth Dorsey. (tlf) Copy to parties.
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Case 1:12-vv-00479-UNJ Document 68 Filed 05/17/16 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 26, 2016
************************************* UNPUBLISHED
THUY NGUYEN, as Parent and Natural *
Guardian of S.N., *
*
Petitioner. * No. 12-479V
*
v. *
* Chief Special Master Dorsey
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * DTap; Hib; IPV; Prevnar;
* Rotavirus; Sudden Infant Death
Respondent. * Syndrome (“SIDS”).
*
*************************************
Anne C. Toale, Maglio, Christopher & Toale, Sarasota, FL, for petitioner.
Lara Englund, United States Department of Justice, Washington, DC for respondent.
DECISION DISMISSING PETITION1
On July 27, 2012, Thuy Nguyen (“petitioner”) filed a petition on behalf of her deceased
minor child, S.N., for compensation under the National Vaccine Injury Act of 1986, 42 U.S.C.
§§ 300aa-10 et seq. (2012) (“Vaccine Act”). Petitioner alleges that as a result of receiving
DTaP, Hib, IPV, Prevnar, and Rotavirus vaccinations on April 4, 2011, S.N. suffered from
Sudden Infant Death Syndrome (“SIDS”) and passed away on April 5, 2011. Petition at ¶¶ 2, 4.
On April 21, 2016, petitioner filed a motion for a decision dismissing the petition. In the
motion, petitioner states that due “recent developments in SIDS litigation” and the undersigned’s
recent ruling Cozart v. Sec’y of Health & Human Servs., No. 00-590V, 2015 WL 6746499 (Fed.
1 Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims'
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
she will delete such material from public access.
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Case 1:12-vv-00479-UNJ Document 68 Filed 05/17/16 Page 2 of 2
Cl. Spec. Mstr. Oct. 15, 2015); motion for rev. denied 2016 WL 1165978 (Fed. Cl. March 9,
2016), she will “be unable to prove that she is entitled to compensation.” Petitioner’s (“Pet’r’s”)
Motion for Decision dated April 21, 2016 (ECF No. 66), at ¶ 1. Petitioner states that she
understands that a decision by the Special Master will result in a judgment against her, and that
such a judgment will end all of S.N.’s rights in the Vaccine Program. Id. at ¶ 3. Petitioner also
states that she wishes to preserve her right to file a civil action. Id. at ¶ 5. Respondent does not
oppose petitioner’s motion, except to preserve the right to oppose petitioner’s application for fees
and costs. Id. at ¶ 4.
To receive compensation under the Program, petitioner must prove either: 1) that S.N.
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to a vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§
300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover any
evidence that S.N. suffered a “Table Injury,” nor does petitioner allege that he suffered a “Table
Injury.” Further, the record does not contain any persuasive evidence indicating that S.N.’s
injury was caused by the vaccinations he received on April 4, 2011.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. 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, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner has filed expert reports from Dr. M. Eric Gershwin and Dr.
Douglas Miller. Though these opinions have been offered, in light of the undersigned’s recent
ruling in Cozart, they are not persuasive.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that S.N. suffered a “Table Injury” or that his injuries were caused-in-fact by
vaccination. Thus, this case is dismissed for insufficient proof. In the absence of a motion
for review, the Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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