VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00700
Package ID: USCOURTS-cofc-1_17-vv-00700
Petitioner: X.E.
Filed: 2017-05-26
Decided: 2019-06-10
Vaccine: rotavirus
Vaccination date: 2015-05-15
Condition: intussusception or, in the alternative, “some form of neurological syndrome or physical injury,” and lead to his eventual death
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
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.

Theory of causation field:
Petitioners alleged that a rotavirus vaccination administered on May 15, 2015, to minor child X.E. caused intussusception or, alternatively, a neurological syndrome or physical injury leading to death. The petition was filed on May 26, 2017. Respondent opposed compensation, noting the absence of an intussusception diagnosis in medical records, lack of support for intussusception in the records, no treating physician connection between the vaccine and injuries/death, and no proposed medical theory of causation by petitioners. Petitioners considered a SIDS theory but filed no supportive expert report. Special Master Christian J. Moran dismissed the case on June 10, 2019, for insufficient proof, finding no "Table Injury," no persuasive evidence of vaccine causation, and no competent medical opinion connecting the rotavirus vaccine to X.E.'s injuries or death. Petitioners moved for dismissal, stating they were unlikely to prove entitlement. No award was made. Attorneys: Gerald Edwin Rush, II (petitioner), Heather L. Pearlman (respondent). Special Master: Christian J. Moran.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00700-0
Date issued/filed: 2019-07-10
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 6/10/2019) regarding 49 DECISION of Special Master. Signed by Special Master Christian J. Moran. (abs) Service on parties made.
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Case 1:17-vv-00700-UNJ Document 50 Filed 07/10/19 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
NICO HERRON and PATIENCE *
TURNER on behalf of minor child, *
X.E., * No. 17-700V
* Special Master Christian J. Moran
Petitioners, *
*
v. * Filed: June 10, 2019
*
SECRETARY OF HEALTH * Entitlement, dismissal
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Gerald Edwin Rush, II, Rush Law and Consulting, APC, Los Angeles, CA, for
petitioner;
Heather L. Pearlman, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Nico Herron and Patience Turner filed a petition on behalf of her child, X.E.,
under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa—10 through
34, on September 22, 2017. The petition alleged that the rotavirus vaccination that
X.E. received on May 15, 2015, caused X.E. to suffer intussusception or, in the
alternative, “some form of neurological syndrome or physical injury,” and lead to
his eventual death. See Petition, filed May 26, 2017, at 1-2. On May 21, 2019,
petitioners moved for a decision dismissing their petition.
1 The E-Government Act, 44 § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
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.

Case 1:17-vv-00700-UNJ Document 50 Filed 07/10/19 Page 2 of 3
I. Procedural History
The petitioners filed a petition on behalf of X.E. on May 26, 2017. The
petitioners finished submitting X.E.’s medical records and a statement of
completion on January 17, 2018.
On April 5, 2018, the Secretary filed his Rule 4 report opposing a finding of
entitlement. The Secretary noted that none of X.E.’s doctors had made a diagnosis
of intussusception and argued that the medical records did not support
intussusception. The Secretary pointed out that none of X.E.’s treating physicians
proposed a connection between the vaccination and X.E.’s injuries or his eventual
death. The Secretary also noted that the petitioners had not yet proposed a medical
theory for how the vaccinations caused X.E.’s injuries and his eventual death. The
Secretary requested that the petitioners file additional medical records.
At the Rule 5 status conference on April 11, 2018, the petitioners advised
that they might also be pursuing a sudden infant death syndrome (“SIDS”) theory.
The undersigned informed petitioners, and petitioners’ counsel, who was new to
the Vaccine Program, of the generally unsuccessful history of SIDS claims in the
Vaccine Program. The petitioners were ordered to file the outstanding medical
records and other documents.
After the petitioners submitted some outstanding records and concluded that
other records were not available, the case proceeded to the expert report phase.
The undersigned then issued expert instructions. Order, issued Aug. 22, 2018.
Following a September 10, 2018 status conference to discuss the instructions, the
petitioners’ expert report deadline was set for November 9, 2018.
After obtaining several extensions of time for their expert report, the
petitioners advised that they were seeking a stipulated dismissal but had to wait
until the government shutdown ended to confer with the Secretary’s counsel.
Pet’rs’ Mot., filed Jan. 18, 2019. On April 20, 2019, petitioners filed a notice to
withdraw petition pursuant to 42 U.S.C. § 300aa-21(b). Because the petitioners
were not eligible to withdraw their petitioner pursuant to 42 U.S.C. § 300aa-21(b),
the petitioners were advised to pursue another option to conclude their case. On
May 21, 2019, the petitioners moved for a decision dismissing their petition. The
Secretary did not file a response.
This matter is now ready for adjudication.
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Case 1:17-vv-00700-UNJ Document 50 Filed 07/10/19 Page 3 of 3
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). An examination of the record did not uncover any evidence that
X.E. suffered a “Table Injury.” Further, the record does not contain other
persuasive evidence indicating that X.E.’s injuries and eventual death are vaccine-
caused.
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 the instant motion, the petitioners stated that “they will be unlikely to
prove they are entitled to compensation in the Vaccine Program given the
challenges facing them in proving their case.” A review of the record supports the
conclusion that the petitioners have not proposed a medical theory connecting the
rotavirus to X.E. injuries or his eventual death and that X.E.’s treating physicians
did not relate the vaccinations to X.E.’s injuries or his eventual death.
Accordingly, the undersigned finds that the petitioners have not
demonstrated that the rotavirus vaccination “actually caused” X.E.’s injuries or
lead to his eventual 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, Andrew Schick, at (202)
357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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