VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-00169
Package ID: USCOURTS-cofc-1_14-vv-00169
Petitioner: A.S.
Filed: 2016-02-29
Decided: 2016-03-28
Vaccine: DTaP
Vaccination date: 2011-03-02
Condition: vaccinosis, regressive encephalopathy, chronic ear infections, and enterolitis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
On March 4, 2014, Dawn Somelofski filed a petition on behalf of her minor child, A.S., seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that the DTaP vaccine administered to A.S. on or about March 2, 2011, caused vaccinosis, regressive encephalopathy, chronic ear infections, and enterolitis. The Special Master ordered the petitioner to file an expert report supporting her claim by December 29, 2014. After extensions and a motion to withdraw by initial counsel, which was granted, the petitioner obtained new counsel. The petitioner requested that the expert report deadline be suspended pending mitochondrial testing, which was granted. After requesting and receiving an extension for test results, the petitioner filed the testing results on November 14, 2015. The Special Master then set a deadline for the petitioner's expert report for February 12, 2016. Instead, on February 26, 2016, the petitioner filed an unopposed motion to dismiss, stating that she was unlikely to meet her burden of proof after investigating the facts and science. The petitioner indicated an understanding that the decision would end her rights in the Vaccine Program but wished to preserve her rights to file a civil action in the future and requested dismissal to avoid wasting judicial resources. The respondent did not object to the motion to dismiss. The Special Master noted that to receive compensation, a petitioner must prove either a "Table Injury" or that the injury was actually caused by a vaccine. The Special Master found no evidence of a "Table Injury" in the record. Furthermore, the Special Master determined that the record lacked sufficient persuasive evidence to establish that the alleged injury was caused by the vaccinations or that it lasted more than six months. The Special Master also noted that the petition was not supported by medical records or the opinion of a competent physician, and that no expert opinion was offered. Consequently, the Special Master dismissed the case for insufficient proof and ordered judgment to be entered accordingly. The decision was issued by Special Master Brian H. Corcoran.

Theory of causation field:
Petitioner Dawn Somelofski, on behalf of minor A.S., alleged that the DTaP vaccine administered on or about March 2, 2011, caused vaccinosis, regressive encephalopathy, chronic ear infections, and enterolitis. The case was filed on March 4, 2014. After procedural delays, including obtaining new counsel and mitochondrial testing, Petitioner filed an unopposed motion to dismiss on February 26, 2016, stating an unlikelihood of meeting the burden of proof. Special Master Brian H. Corcoran dismissed the case on March 28, 2016, for insufficient proof. The Special Master found no evidence of a "Table Injury," insufficient evidence that the alleged injury was caused by the vaccination, and insufficient evidence that the injury lasted more than six months. The public decision does not describe the specific mechanism of injury, name any experts, or detail the clinical story, onset, symptoms, or treatments. The petitioner's counsel was Valerie Ann Borek, and respondent's counsel was Alexis Babcock. No award was made as the case was dismissed.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-00169-1
Date issued/filed: 2016-03-28
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 2/29/2016) regarding 44 DECISION of Special Master. Signed by Special Master Brian H. Corcoran. (ag) Copy to parties.
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Case 1:14-vv-00169-UNJ Document 45 Filed 03/28/16 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-169V
(Not to be Published)
* * * * * * * * * * * * * * * * * * * * * * * * *
DAWN SOMELOFSKI, parent of A.S., *
a minor, * Filed: February 29, 2016
*
Petitioner, *
v. * Vaccine Act Entitlement;
* Denial Without Hearing
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Valerie Ann Borek, V. Borek Law Firm, Boothwyn, PA, for Petitioner.
Alexis Babcock, U.S. Dep’t of Justice, Washington, D.C. for Respondent.
DECISION DISMISSING CASE1
On March 4, 2014, Dawn Somelofski filed a petition on behalf of her minor child A.S.,
seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine
Program”).2 The Petition alleges that the DTaP vaccine that A.S. received on or about March 2,
2011, caused him to develop vaccinosis, regressive encephalopathy, chronic ear infections, and
enterolitis. See Pet. at 1 (ECF No. 1).
1 Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public.
Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:14-vv-00169-UNJ Document 45 Filed 03/28/16 Page 2 of 3
After Petitioner filed her medical records and Respondent filed her 4(c) Report disputing
compensation, I ordered Petitioner on September 29, 2014, to file an expert report supporting her
claim by December 29, 2014. Petitioner requested an extension of time, which I granted.
Petitioner’s counsel then filed a motion to withdraw as attorney, which was granted on April 27,
2015. Petitioner requested that the expert report deadline be suspended pending mitochondrial
testing. After requesting an extension of time to file the test results, which I granted, Petitioner
obtained new counsel. The testing results were finally filed on November 14, 2015, and I set the
deadline for Petitioner’s long overdue expert report for February 12, 2016.
Instead, on February 26, 2016, Petitioner filed an unopposed Motion to Dismiss. Mot. to
Dismiss (ECF No. 43). In it, Petitioner states that she is unlikely to succeed in meeting her burden
of proof after an investigation of the facts and science. Id. at 1. Petitioner also stated her
understanding that the requested decision will end all of her rights in the Vaccine Program. Id. Ms.
Somelofski intends to protect her rights to file a civil action in the future, but in an effort to not
waste judicial resources, requests dismissal of his current claim. Id. at 1-2. Respondent does not
object.
To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused
by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record, however, does not
uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain
sufficient persuasive evidence establishing that the alleged injury that Petitioner experienced could
have been caused by the vaccinations received, or that it lasted more than six months (see
§ 11(c)(1)(D)(i)).
In addition, under the Vaccine Act, a petitioner may not receive a Vaccine Program award
based solely on his claims alone. Rather, the petition must be supported by either medical records
or by the opinion of a competent physician. Section 13(a)(1). In this case, there is insufficient
evidence in the record for Petitioner to meet her burden of proof, and she has not offered an expert
opinion supporting her claim. Petitioner’s claim therefore cannot succeed and must be dismissed.
Section 11(c)(1)(A).
Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
2

Case 1:14-vv-00169-UNJ Document 45 Filed 03/28/16 Page 3 of 3
Special Master
3