VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00987
Package ID: USCOURTS-cofc-1_17-vv-00987
Petitioner: M.L.
Filed: 2017-07-21
Decided: 2018-05-31
Vaccine: DTaP
Vaccination date: 2014-07-24
Condition: urticaria
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Tzipora Lefkowitz filed a petition on July 21, 2017, on behalf of her minor child, M.L., alleging that M.L. suffered urticaria as a result of receiving Diphtheria, tetanus, acellular pertussis (DTaP), polio, and hepatitis A vaccinations on July 24, 2014. The respondent, the Secretary of Health and Human Services, contended that the petitioner had not met her burden to establish entitlement to compensation. The respondent argued that the available medical records did not support the petitioner's assertion of an immediate reaction to the vaccination, nor did they indicate a diagnosis of chronic urticaria by a treating doctor. Following the respondent's report, the petitioner initially intended to retain an expert to address the issues raised. The petitioner received two extensions of time to file a status report regarding the expert but never filed one. Instead, Ms. Lefkowitz moved for a decision dismissing her petition. Special Master Christian J. Moran noted that urticaria is not a condition listed in the Vaccine Injury Table, meaning the claim was necessarily a causation-in-fact claim. To receive compensation for an off-Table injury, the petition must be supported by either medical records or the opinion of a competent physician. The Special Master found that the medical records in this case did not support the petitioner's claim, and no medical opinion was offered. Therefore, the Special Master concluded that the petitioner had failed to demonstrate either a Table Injury or that M.L.'s injuries were actually caused by a vaccination. The case was dismissed for insufficient proof. The public decision does not describe the specific onset or symptoms of the urticaria, any diagnostic tests performed, or any treatments received. The names of petitioner's counsel were Joseph L. Krueger and Siri & Glimstad LLP, and respondent's counsel was Ashley M. Simpson. No award amount was granted as the case was dismissed.

Theory of causation field:
Petitioner Tzipora Lefkowitz, on behalf of minor M.L., alleged urticaria following DTaP, polio, and hepatitis A vaccinations on July 24, 2014. The claim was for an off-Table injury, requiring proof of actual causation. Respondent argued that medical records did not support an immediate reaction or a diagnosis of chronic urticaria. Petitioner intended to retain an expert but never did. Petitioner subsequently moved to dismiss her own petition. Special Master Christian J. Moran found that the medical records did not support the claim, and no competent medical opinion was offered to establish causation. The case was dismissed for insufficient proof. Petitioner's counsel was Joseph L. Krueger of Siri & Glimstad LLP, and respondent's counsel was Ashley M. Simpson. The decision date was May 31, 2018.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00987-0
Date issued/filed: 2018-06-26
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 5/31/2018) regarding 31 DECISION of Special Master. Signed by Special Master Christian J. Moran. (abs) Service on parties made.
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Case 1:17-vv-00987-UNJ Document 32 Filed 06/26/18 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
TZIPORA LEFKOWITZ, *
Individually, and for the Minor, M.L., * No. 17-987V
*
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: May 31, 2018
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Diphtheria, tetanus, acellular pertussis
* (“DTaP”) vaccine; polio vaccine;
* hepatitis A vaccine; urticaria;
* compensation.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Joseph L. Krueger, Siri & Glimstad LLP, New York, NY, for petitioner;
Ashley M. Simpson, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Tzipora Lefkowitz filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10 through 34 (2012), on July 21, 2017, on behalf
of her minor child, M.L. Her petition alleged that M.L. had an adverse reaction,
including urticaria, resulting from receiving the Diphtheria, tetanus, acellular
pertussis, polio, and hepatitis A vaccinations on July 24, 2014.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this ruling 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-00987-UNJ Document 32 Filed 06/26/18 Page 2 of 3
On May 2, 2018, Ms. Lefkowitz moved for a decision dismissing her
petition. The undersigned confirms that the information in the record does not
show entitlement to an award under the Program.
I. Procedural History
This case was transferred to the undersigned on July 26, 2017, shortly
following the filing of the petition. After an initial status conference on August 23,
2017, the parties were ordered to file a joint statement of completion. Following
an extension of time and an authorization to subpoena documents, the joint
statement of completion was filed on December 4, 2017.
The respondent then submitted his report pursuant to Vaccine Rule 4. In this
report, respondent contended that petitioner had not met her to establish
entitlement to compensation. Respondent argued that the medical records did not
support petitioner’s assertion that M.L. had an immediate reaction to the
vaccination. Resp’t’s Rep. at 7. The respondent also maintained that a treating
doctor had not diagnosed M.L. as suffering from chronic urticaria. Id.
At the next status conference, petitioner intended to retain an expert to
address the issues raised in Respondent’s Rule 4 report. Petitioner received two
extensions of time to file a status report advising whom she had retained as an
expert.
Petitioner never filed a status report and instead filed the present motion for
a decision dismissing her petition.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program (hereinafter “the Program”), petitioner must prove either 1) that M.L.
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to her vaccination, or 2) that she suffered an injury that was actually
caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). Because
urticaria is not a “Table Injury,” Ms. Lefkowitz cannot proceed on that basis.
Thus, she is necessarily pursuing a causation-in-fact claim.
Under the Act, a petitioner may not be given a Program award based solely
on the 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). In
2

Case 1:17-vv-00987-UNJ Document 32 Filed 06/26/18 Page 3 of 3
this case, because the medical records do not support Ms. Lefkowitz’s claim, a
medical opinion must be offered in support. Ms. Lefkowitz, however, has offered
no such opinion.
Accordingly, it is clear from the record in this case that Ms. Lefkowitz has
failed to demonstrate either that M.L. suffered a “Table Injury” or that M.L.’s
injuries were “actually caused” by a vaccination. Thus, this case is dismissed for
insufficient proof. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3