E.M.M. v. HHS - chronic constipation and gastrointestinal problems (2014)

On November 20, 2013, Courtney and Bernard Miller filed a petition on behalf of their minor daughter, E.M.M., seeking compensation under the National Vaccine Injury Act of 1986. They alleged that vaccines E.M.M. received between July 31, 2009, and April 12, 2011, caused her to suffer from chronic constipation and gastrointestinal problems.

Initially, developmental regression was also alleged, but this was later removed in an amended petition filed on March 15, 2014. The respondent, the Secretary of Health and Human Services, filed a Rule 4(c) report on June 16, 2014, stating that the case was not appropriate for compensation.

The respondent argued that the petitioners failed to prove by a preponderance of the evidence that E.M.M.'s chronic constipation and gastrointestinal problems were caused-in-fact by any of her vaccinations, and that the petition should be dismissed due to insufficient evidence. On November 5, 2014, the petitioners filed an unopposed motion for a dismissal decision, acknowledging that they would be unable to prove E.M.M. is entitled to compensation.

The petitioners understood that such a decision would result in a judgment against them and end all rights in the Vaccine Program. The respondent had no objection to this motion.

Special Master Nora Beth Dorsey noted that to receive compensation, petitioners must prove either a "Table Injury" – an injury listed on the Vaccine Injury Table corresponding to a vaccination – or that the injury was actually caused by a vaccine. The record did not contain evidence of a Table Injury.

Furthermore, the record did not include a medical expert's opinion or any other persuasive evidence establishing causation. The Special Master emphasized that under the Vaccine Act, a petition cannot be awarded compensation based solely on the petitioner's claims; it must be supported by medical records or a physician's opinion.

As the medical records were insufficient and no medical expert opinion was offered, the petition was dismissed for insufficient proof. The Clerk was directed to enter judgment accordingly in the absence of a motion for review.