VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-01401
Package ID: USCOURTS-cofc-1_17-vv-01401
Petitioner: Matthew McDermott
Filed: 2017-10-02
Decided: 2019-11-07
Vaccine: influenza
Vaccination date: 2014-10-03
Condition: optic neuritis and anterior ischemic optical neuropathy
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Matthew McDermott filed a petition in the National Vaccine Injury Compensation Program on October 2, 2017, alleging that he suffered optic neuritis and anterior ischemic optical neuropathy as a result of receiving an influenza vaccine on October 3, 2014. The respondent is the Secretary of Health and Human Services. On October 7, 2019, Mr. McDermott filed a motion to dismiss his petition, stating that he would be unable to prove entitlement to compensation after investigating the facts and science supporting his case. He recognized that proceeding further would be unreasonable and a waste of resources for the Court, the respondent, and the Vaccine Program. The respondent did not oppose the motion. Mr. McDermott stated his intention to protect his rights to file a civil action in the future and elected to reject the Vaccine Program judgment pursuant to 42 U.S.C. § 300aa-21(a)(2). The Special Master noted that to receive compensation, a petitioner must prove either a "Table Injury" or an injury caused-in-fact by a covered vaccine, supported by medical records or expert opinion. The public decision states that Mr. McDermott did not allege a Table injury, nor did the record reflect one. Regarding an off-Table injury, the public decision indicates that Mr. McDermott had not provided sufficient medical records or expert opinions to support a finding of entitlement, and thus had not met his burden of proof. Special Master Thomas L. Gowen granted the motion for dismissal, dismissing the case for insufficient proof. No award amount was granted as the case was dismissed. The public decision does not describe the specific onset of symptoms, medical records, expert names, or the proposed mechanism of injury.

Theory of causation field:
Petitioner Matthew McDermott alleged optic neuritis and anterior ischemic optical neuropathy resulting from an influenza vaccine administered on October 3, 2014. The petition was filed on October 2, 2017. On October 7, 2019, petitioner moved for dismissal, stating an inability to prove entitlement to compensation, deeming further proceedings unreasonable and a waste of resources. Respondent did not oppose the motion. Special Master Thomas L. Gowen granted the motion, dismissing the case for insufficient proof, as petitioner had not alleged or provided evidence of a Table injury, nor sufficient medical records or expert opinion for an off-Table injury to meet the burden of proof. Petitioner elected to reject the Vaccine Program judgment to preserve the right to file a civil action. No award was made. The public decision does not specify the theory of causation, named experts, or the mechanism of injury.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-01401-0
Date issued/filed: 2019-11-07
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 10/07/2019) regarding 38 DECISION of Special Master Signed by Special Master Thomas L. Gowen. (hs) Service on parties made.
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Case 1:17-vv-01401-UNJ Document 39 Filed 11/07/19 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 7, 2019
* * * * * * * * * * * * *
MATTHEW MCDERMOTT, * UNPUBLISHED
*
Petitioner, * No.17-1401V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Motion for Dismissal Decision;
AND HUMAN SERVICES, * Influenza (“Flu”); Optical Neuritis;
* Anterior Ischemic Optical
Respondent. * Neuropathy.
* * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for petitioner.
Mallori B. Openchowski, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION1
On October 2, 2017, Matthew McDermott (“petitioner”) filed a petitioner in the National
Vaccine Injury Compensation Program.2 Petition (ECF No. 1) Petitioner alleged that he suffered
optic neuritis and anterior ischemic optical neuropathy as a result of receiving an influenza
(“flu”) vaccine on October 3, 2014. Petition at Preamble. The information in the record does not
establish entitlement to compensation.
On October 7, 2019, petitioner filed a motion for a decision dismissing the petition
pursuant to Rule 21(a). Petitioner’s Motion (“Pet. Mot.”) (ECF No. 37). Petitioner avers that
after an investigation of the facts and science supporting his case, she will be unable to prove that
he is entitled to compensation in the Vaccine Program. Id. at ¶ 1. Petitioner recognizes that to
proceed further would be unreasonable and would waste the resources of the Court, the
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
decision.” 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 Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §300aa
of the Act.

Case 1:17-vv-01401-UNJ Document 39 Filed 11/07/19 Page 2 of 2
respondent and the Vaccine Program. Id. at ¶ 2. Petitioner understands that dismissing the
petition that a judgment will end petitioner’s rights in the Vaccine program. Id. at ¶ 3. Petitioner
understand that he may apply for fees and costs once the case is dismissed and judgment is
entered against him. Id. at ¶ 4. Respondent expressly reserves the right to question the good
faith and reasonable basis of this claim and to oppose, if appropriate, petitioner’s application for
fees and costs. Id. Respondent does not otherwise oppose this motion. Petitioner intends to
protect his rights to file a civil action in the future. Therefore, pursuant to § 300aa-21(a)(2),
petitioner intends to elect to reject the Vaccine Program judgment and elect to file a civil action.
Id. at ¶ 7.
To receive compensation in the Vaccine Program, petitioner has the burden of proving
either: (1) that petitioner suffered a “Table Injury,” i.e. an injury beginning with a specified
period of time following receipt of a corresponding vaccine listed on the Vaccine Injury Table (a
“Table injury”) or (2) that petitioner suffered an injury that was caused-in-fact by a covered
vaccine. §§ 13(a)(1)(A); 11(c)(1). Moreover, under the Vaccine Act, the Vaccine Program may
not award compensation based on petitioner’s claims alone. Rather, petitioner must support the
claim with either medical records or the opinion of a competent medical expert. §13(a)(1). In
this case, petitioner has not alleged nor does the record reflect a Table injury. With regard to an
off-Table injury, petitioner has not provided sufficient medical records or expert opinion(s)
which support a finding of entitlement. Accordingly, petitioner has not met his burden of proof.
Thus, petitioner’s motion is GRANTED. This matter is DIMISSED for insufficient
proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2