VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01244
Package ID: USCOURTS-cofc-1_17-vv-01244
Petitioner: J.D.
Filed: 2017-09-13
Decided: 2021-03-11
Vaccine: Pentacel
Vaccination date: 2014-09-04
Condition: acute flaccid myelitis (AFM)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Andrea Dixon, as next friend of J.D., a minor, filed a petition on September 13, 2017, alleging that J.D. suffered acute flaccid myelitis (AFM) as a result of receiving the Pentacel and Prevnar 13 vaccines on September 4, 2014. The petition stated that J.D. was diagnosed with AFM, although an amended petition later alleged the diagnosis was transverse myelitis (TM). The case was filed as a potential Table injury claim, but the court noted that the record did not contain persuasive evidence of a Table injury. Both parties obtained expert reports regarding causation, and all four experts agreed that J.D. was correctly diagnosed with AFM. The petitioner did not file supplemental expert reports to address further questions raised by the court regarding causation. Ultimately, the petitioner advised the court that she agreed to a voluntary dismissal of the claim, stating that she was seeking a decision dismissing her claim due to insufficient proof. The court granted the motion and dismissed the case for insufficient proof, noting that the medical records were insufficient to establish entitlement and that the petitioner had not supported the claim with persuasive evidence of causation. The Special Master was Thomas L. Gowen. Petitioner's counsel was Scott W. Rooney, and respondent's counsel was Lara A. Englund. The decision was issued on March 11, 2021.

Theory of causation field:
Petitioner Andrea Dixon, as next friend of J.D., a minor, alleged that J.D. suffered acute flaccid myelitis (AFM) or transverse myelitis (TM) as a result of receiving Pentacel and Prevnar 13 vaccines on September 4, 2014. The case was initially considered as a potential Table injury, but the record lacked persuasive evidence of a Table injury, limiting the claim to causation-in-fact. Petitioner filed two expert reports, and respondent filed two responding expert reports. All four experts agreed that J.D. was correctly diagnosed with AFM. The Special Master identified additional questions regarding causation-in-fact, but petitioner did not file supplemental expert reports. Petitioner later averred that the correct diagnosis was TM, but the Special Master found that updated medical records supported the diagnosis of AFM. Petitioner ultimately moved for voluntary dismissal due to insufficient proof. The Special Master, Thomas L. Gowen, granted the motion and dismissed the case on March 11, 2021, finding the medical records insufficient to establish entitlement and lacking persuasive evidence of causation. Petitioner's counsel was Scott W. Rooney, and respondent's counsel was Lara A. Englund.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01244-0
Date issued/filed: 2021-04-01
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 3/11/21) regarding 77 DECISION of Special Master Signed by Special Master Thomas L. Gowen. (kb) Service on parties made.
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Case 1:17-vv-01244-UNJ Document 84 Filed 04/01/21 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 11, 2021
* * * * * * * * * * * * * * * * * * *
ANDREA DIXON, next friend of * UNPUBLISHED
J.D., a minor, *
* No. 17-1244v
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Decision Dismissing
AND HUMAN SERVICES, * Claim; Pentacel; Prevnar 13;
* Transverse Myelitis (TM); Acute
Respondent. * Flaccid Myelitis (AFM).
* * * * * * * * * * * * * * * * * * *
Scott W. Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for petitioner.
Lara A. Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On September 13, 2017, Andrea Dixon (“petitioner”) as next friend of J.D., a minor, filed
a petition in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). On
September 4, 2014, J.D. received diphtheria-tetanus-acellular pertussis (“DTaP”), inactivated
polio virus (“IPV”), and haemophilus influenzae type B (“Hib”) (administered together as
“Pentacel”) and pneumococcal conjugate (“Prevnar 13”) vaccines, which are listed on the
Vaccine Injury Table. Id. at ¶ 4. Petitioner alleged that as a result of said vaccines, J.D.
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s
website, each party has 14 days to file a motion requesting 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). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.

Case 1:17-vv-01244-UNJ Document 84 Filed 04/01/21 Page 2 of 2
developed acute flaccid myelitis (“AFM”). Id. at ¶ 34.3 The information in the record, does not
establish entitlement to compensation.
On February 26, 2021, petitioner filed a status report advising that she has agreed to
voluntary dismissal. Petitioner’s (“Pet.”) Status Report (ECF No. 75). On March 10, 2021,
petitioner filed a motion which confirms that she is seeking a decision dismissing her claim. Pet.
Motion (“Mot.”) (ECF No. 76).
To receive compensation in the Vaccine Program, petitioner has the burden of proving
either: (1) that she suffered a “Table Injury,” i.e., an injury beginning within a specified period of
time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a “Table
injury”) or (2) that she suffered an injury that was caused-in-fact by a covered vaccine. §§
13(a)(1)(A); 11(c)(1). Here, an examination of the record does not contain any allegation or
persuasive evidence that petitioner suffered a “Table Injury.” Thus, she is limited to alleging
causation-in-fact. The record does not contain persuasive evidence indicating that J.D.’s injury
was caused or in any way related to the vaccine which she received.
Moreover, under the Vaccine Act, the Vaccine Program may not award compensation
based on the petitioner’s claims alone. Rather, the petitioner must support the claim with either
medical records or the opinion of a competent medical expert. 42 U.S.C. § 13(a)(1). Here, the
medical records are insufficient to establish entitlement. After respondent advised that he would
defend against the claim, petitioner filed two experts’ reports, see Pet. Exs. 17-18, to which
respondent had two similar experts respond, see Resp. Exs. A, C. All four experts accepted that
J.D. was correctly diagnosed with acute flaccid myelitis (“AFM”). At a status conference on
July 16, 2019, held pursuant to Vaccine Rule 5, I identified additional questions pertaining to the
nature of AFM, which bear on petitioner’s burden of establishing causation-in-fact. See Order
(ECF No. 51). Petitioner did not file supplemental expert reports. Instead, she averred that
J.D.’s correct diagnosis is not AFM, but transverse myelitis (“TM”). However, a review of
J.D.’s updated medical records supports that J.D.’s diagnosis is AFM. Pet. Ex. 38 at 1; see also
Scheduling Order filed February 26, 2020 (ECF No. 63); Scheduling Order filed December 4,
2020 (ECF No. 74). Petitioner has now requested voluntary dismissal of her claim.
Thus, petitioner’s motion is GRANTED. This matter is DISMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 But see Amended Petition filed September 24, 2018 (ECF No. 31) at ¶¶ 39, 52-53 (alleging that J.D.’s injury is
transverse myelitis, which will be discussed below).
4 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2