X.E. v. HHS - Rotavirus, intussusception or, in the alternative, “some form of neurological syndrome or physical injury,” and lead to his eventual death (2019)

On May 26, 2017, Nico Herron and Patience Turner filed a petition on behalf of their minor child, X.E., alleging that a rotavirus vaccination administered on May 15, 2015, caused X.E. to suffer intussusception or, alternatively, some form of neurological syndrome or physical injury, which ultimately led to his death. The petition was filed under the National Childhood Vaccine Injury Act.

The respondent, the Secretary of Health and Human Services, opposed compensation in a Rule 4 report filed on April 5, 2018. The Secretary noted that none of X.E.'s treating physicians had diagnosed intussusception, that the available medical records did not support such a diagnosis, and that no treating physician had connected the vaccination to X.E.'s injuries or death.

Furthermore, the petitioners had not proposed a medical theory of causation. During a Rule 5 status conference on April 11, 2018, the petitioners indicated they might pursue a sudden infant death syndrome (SIDS) theory, but no supportive expert report was ever filed.

The Special Master informed the petitioners' counsel, who was new to the Vaccine Program, about the generally unsuccessful history of SIDS claims. The petitioners were ordered to submit outstanding medical records and other documents.

After submitting some records and determining others were unavailable, the case moved towards the expert report phase, with an initial deadline of November 9, 2018, which was extended multiple times. The petitioners later advised they were seeking a stipulated dismissal.

On May 21, 2019, the petitioners moved for a decision dismissing their petition, stating they were unlikely to prove entitlement to compensation. The Secretary did not file a response to this motion.

Special Master Christian J. Moran issued a decision on June 10, 2019, dismissing the case for insufficient proof.

The Special Master found that the record did not show a "Table Injury" as defined by the Vaccine Injury Table, nor did it contain persuasive evidence that X.E.'s injuries and eventual death were vaccine-caused. The decision noted that a petitioner cannot receive an award based solely on claims; the petition must be supported by medical records or a competent physician's opinion.

In this case, the petitioners had not proposed a medical theory connecting the rotavirus vaccine to X.E.'s injuries or death, and X.E.'s treating physicians had not made such a connection. Consequently, the Special Master granted the motion for dismissal.

No compensation was awarded. The attorneys involved were Gerald Edwin Rush, II for the petitioner and Heather L.

Pearlman for the respondent. The decision was issued by Special Master Christian J.

Moran.