FACT DECISIONS Factual determination that SIRVA injury more likely caused by influenza vaccine than uncovered vaccine In this SIRVA case, the petitioner received an uncovered pneumococcal vaccine and a covered influenza vaccine in the same arm at the same time.   The court concluded that there was preponderant evidence for a finding that the petitioner’s right […]

Attorney Fees Reasonable Basis Alicock v. HHS, (Fed. Cl. Nov. 9, 2016) (Wheeler, J) Denial of motion for review filed by HHS.  SM had awarded fees and costs in a claim for significant aggravation of developmental delay. According to mom, treating physician told her there was encephalopathy possibly caused by vaccination.  Medical records included encephalopathy […]

Supplemental Costs Post-Fee Judgment SM granted an unopposed request for supplemental expert costs inadvertently omitted from original fees and costs determination, which had been settled by stipulation.  Judgment had issued on the original fees and costs decision.  However, the 180 day period in which to requests fees and costs had not yet expired.  Brasher v. […]

Attorneys’ Fees Check Payee Special master granted relief from judgment where counsel was unable to contact petitioner to endorse the fees and costs check.  This satisfied the “narrow circumstances” where a fees award should be payable directly to counsel.  The court noted that counsel did have other remedies against his client, however because the case […]

Entitlement denied in a case alleging MMR-caused Myoclonic-Astatic Epilepsy (also known as “Doose Syndrome”).   Analytical gaps between medical literature and expert’s theory were too great and too numerous to persuade.  Although molecular mimicry was a valid theory to explain some vaccine reactions, simply explaining how theory of molecular mimicry works with other diseases and purporting […]

Non-Forum Rates Glaser v. HHS, (Fed. Cl. Spec. Mstr. Jun. 6, 2016) (Corcoran, SM). VT attorney only entitled to non-forum rates under Davis exception to McCulloch; prior decisions involving same attorney established VT rates were substantially lower than forum and changed circumstances were not established here.  Awarded rates of $225 to $238. JB v. HHS, (Fed. […]

Procedural Decisions Valle v. HHS. (Fed. Cl. Aug. 6, 2016) (Lettow, J).  Thirty-day time limit to file a motion for review under section 300aa-12(e)(1) is jurisdictional, notwithstanding that it is notably rigid and out of step with other statutes and rules relating to the time for seeking review or appeal. *Full decisions are available on […]

Substantive Decisions Rus v. HHS, (Fed. Cl. Spec. Mstr. Jun. 23, 2016) (Gowen, SM).  Denial of entitlement in case alleging DTaP caused nephrotic syndrome.  The proffered mechanisms were (1) a “specific” T-cell response, and (2) an inflammatory cytokine response to the vaccination that alters an “unspecific” pathway, involving angiopoietin-like 4.  Although Petitioner’s expert “labored valiantly […]

Premature Ovarian Failure Mini Omnibus This group of cases has been attempting to resolve when the first symptom or manifestation of onset occurs in POF, for purposes of the SOL. The court held that for petitioners who were eighteen years old or younger at the time the condition arose, if the condition qualifies for evaluation […]

Stanford v. HHS, (Fed. Cl. Spec. Mstr. May 16, 2016) (Moran, SM) 20+ year MD/.JD, with relatively little vaccine program experience, requested $525 per hour, but was awarded $400 (McCulloch range $300-425). A 5-year MBA/JD requested $385 per hour, but was awarded $260 (McCulloch range $225-300). Although not mentioned in the analysis, the attorneys were […]

Pentchelov v. HHS, (Fed. Cl. Spec. Mstr. April 29, 2016) (Corcoran, SM) The Court approved a $400 hourly rate for a 40-year attorney from Beverly Hills, ($350-$425 McCulloch range). The Court cited a previous decision holding that LA area attorneys were entitled to “forum” rates in the program. The court awarded $235 per hour, rather […]

Copenhaver v. HHS, (Fed. Cl. Spec. Mstr. May 31, 2016) (Moran, SM) This case is very similar to several recent SIDS cases, all involving the same theory and the same experts, and previous denials such as this one have been affirmed on appeal, e.g. Cozart. The specific reasons petitioner lost in this case were characterized […]

Reilly v. HHS, (Fed. Cl. Spec. Mstr. May 31, 2016) (Hamilton-Fieldman, SM) After a brain biopsy, it was determined that the child had a focal cortical dysplasia, and Petitioner’s expert testified that this was a predisposition which caused the seizure disorder once triggered by DTaP. Respondent argued that the brain anomaly itself was a sufficient […]

Day v. HHS, (Fed. Cl. Spec. Mstr. May 21, 2016) (Dorsey, CSM) (Ed. Note – this was my case, and HHS has appealed) An entitlement decision had been issued in this neuromyelitis optica post Gardasil case, involving a very significantly disabled teenager. The life care planning process was ongoing, but the family circumstances were desperate: […]

Bourche v. HHS, (Fed. Cl. Spec. Mstr. June 24, 2016) (Moran, SM) The court denied the interim fees request, noting that interim fees are typically only granted when a case has been pending for several years, which would meet the definition of protracted under Avera. Waiting until the end of a case to be paid […]

Barone v. HHS, (Fed. Cl. Spec. Mstr. Jun. 12, 2016) (Corcoran, SM) Petitioner was wheelchair dependent, suffered from quadriparesis, and was vision and cognition-impaired. She was unable to be cared for at home due to family dynamics. The parties’ life care planners had reached an agreement on most life care plan items, including moving petitioner […]

Bean-Sasser v. HHS, (Fed. Cl. Jun. 26, 2016) (Yock, SJ)  The reviewing court held it was not arbitrary and capricious to find that Petitioner’s RA was pre-existing at the time of the vaccines, given the RF antibody. Further, it was within his discretion to find that Respondent’s expert was more persuasive, especially given his more recent […]

Miller v. HHS, (Fed. Cl. Spec. Mstr. Jun. 3, 2016) (Hastings, SM) The court denied most of the fees and costs requested, finding it was not reasonable for Petitioners to take to trial their very weak case alleging that autism was vaccine-related. The Court awarded fees for the original participation in the OAP, however, the […]

HL v HHS, (Fed. Cl. Spec. Mstr. Mar. 17, 2016) (Hastings, SM) The petitioner unsuccessfully argued that a vaccination significantly aggravated her child’s pre-existing Leigh Disease, resulting in the child’s death. Experts for both sides agreed that the child had Leigh disease, that metabolic decompensation can be caused by a fever or infectious illness, and […]

RV v. HHS, (Fed. Cl. Spec. Mstr. Feb. 19, 2016) (Corcoran, SM) In this case, similar to previous cases, petitioner argued that an underlying, preexisting mitochondrial disease was exacerbated by receipt of a vaccine, resulting in autism. An alternative causation theory was offered – molecular mimicry causing an autoimmune encephalopathy. The Court found that a […]

Reiling v. HHS, (Fed. Cl. Spec. Mstr. Jun 24, 2016) (Moran, SM) Counsel sought an award of interim fees and costs after withdrawing as counsel. The Court ultimately held that reasonable basis had not been demonstrated as of yet, although it could be later as the petitioner was proceeding pro se. Thus, an interim fee […]

Reiling v. HHS, (Fed. Cl. Spec. Mstr. Jun 24, 2016) (Moran, SM) Counsel sought an award of interim fees and costs after withdrawing as counsel. The Court ultimately held that reasonable basis had not been demonstrated as of yet, although it could be later as the petitioner was proceeding pro se. Thus, an interim fee […]

Auch v. HHS, (Fed. Cl. Spec. Mstr. May 20, 2016) (Corcoran, SM) The court held that a three-year proceeding was sufficiently protracted to warrant an interim award of fees, and it was not required that Petitioner show that all three Avera factors are met for interim fee awards. With respect to hourly rates, counsel sought […]

Petronelli v. HHS, (Ct. Fed. Cl. Spec. Mstr. May 12, 2016) (Gowen, SM) In this GBS case, the Court accepted the testimony of Petitioner’s vocational expert that a former corporate attorney was unable to return to work. The Court found Respondent’s expert unreliable, as he “mischaracterized the record.” Although Petitioner was not working at the […]

Valle v. HHS, (Fed. Cl. Spec. Mstr. Apr. 18, 2016) (Gowen, SM) This case involved a major dispute as to the timing of onset of Petitioner’s MS.  Petitioner contended that her MS began between 4 and 42 days after the third dose of Hepatitis B vaccine; Respondent argued that her MS preceded the vaccine.  The […]

Smith v. HHS, (Fed. Cl. Spec. Mstr. Apr. 8, 2016) (Hamilton-Fieldman, SM) Petitioners argued that equitable tolling should be applied because the child’s doctors had failed to recognize that her injuries might be vaccine related, and that this failure should be considered an extraordinary circumstance that warranted equitable tolling.  More specifically, the argument focused on […]

Courbois v. HHS (Fed Cl. Spec. Mstr. Apr. 20, 2016) (Hamilton-Fieldman, SM) After a hearing, the court issued a bench ruling awarding approximately $143,000 for pain and suffering, $4000 for home modifications and an annuity to cover massage, housekeeping, hairdressing, and landscaping.

Cooper v. HHS, (Fed. Cl. Spec. Mstr. Apr. 25, 2016) (Gowen, SM) In this case alleging anaphylaxis and seizures caused by Hepatitis B vaccination, counsel for Petitioner indicated they no longer wished to proceed with the case and the case was ultimately dismissed.  Respondent argued there was no “factual basis [for the claim] in the […]

Bundrick v. HHS, (Fed. Cl. Spec. Mstr. Apr. 27, 2016) (Roth, SM) Petitioner requested fees and costs in the amount of $16,632.57; Respondent countered that a reasonable range was 12,000-14,000.  The special master awarded the fees and costs requested, plus an amount incurred litigating fees, noting that Respondent had no specific objection to the rates […]

Cozart v. HHS, (Fed. Cl. Mar. 25, 2016) (Smith, SJ) In the trial court, Petitioner failed to prove that vaccines could be an extrinsic risk factor, for purposes of the Triple-Risk Model of SIDS: vulnerable infant, critical development period and exogenous stressor(s).  The underlying theory had been that cytokines released in response to vaccines provoke […]

JT v. HHS, (Fed. Cl. Feb. 1, 2016) (Bruggink, J) In this conceded case, there was a significant dispute between the parties on the underlying methodology that should be used to calculate Petitioners’s lost wages.  Respondent moved the court to decide the issue of whether Petitioner’s future business ventures should be included in the wage […]

Loving v. HHS, (Fed. Cl. Spec. Mstr. Dec. 15, 2015) (Moran, SM) In this infamous case that set forth the six-part test for significant aggravation claims, the court awarded 189k in fees, where 284k was requested.  Respondent had originally suggested 80k but later moved to 149k.  The case involved one expert but lasted for ten […]

Watson v. HHS. (Fed. CL. Spec. Mstr. Mar. 7, 2016) (Corcoran, SM) In this fee decision, the Special Master reduced the requested hourly rate from $600 to $375, under McCulloch, for this 40+ NYC attorney. Under that framework, 20+ year attorneys in the vaccine program receive a range of $350-$425 (for work in 2014), depending […]

Rehn v. HHS, (Fed. Cl. Mar. 30, 2016) (Lettow, J) The special master had awarded interim fees to withdrawing counsel.  Respondent had challenged reasonable basis.  On appeal, the judge affirmed the applicability of the “totality of circumstances” test for reasonable basis.  Apparently, these circumstances included voluminous records, a complex medical situation following flu vaccination and […]

Dorego v. HHS, (Fed. Cl. Spec. Mstr. Apr. 4, 2016) (Moran, SM) In response to Petitioner’s fee application, Respondent “defer[red] to the special master’s discretion in determining a reasonable fee award.”  Respondent contended that this did not constitute a waiver or failure to object, but the special master held that it did.  Contrary to HHS’ […]

Culligan v. HHS, (Fed. Cl. Spec. Mstr. Mar. 31, 2016) (Hamilton-Fieldman, SM) In this interim fee decision, the Special Master approved of two attorneys trying the case, where there were multiple experts and fact witnesses, the case was complex and Respondent had two attorneys at the hearing. The court held that $400 per hour ($200 […]

Agnew v. HHS, (Fed. Cl. Spec. Mstr. Mar. 30, 2016) (Millman, SM) Petitioner’s theory was that a nasal spray vaccine, which ordinarily causes a subclinical infection, activated his immune system which was misdirected into entering his liver. Within 10 days of vaccination, he had abdominal pain, nausea, increasing yellow color of his skin, a rise […]

Bean-Sasser v. HHS (Fed. Cl. Spec. Mstr. Apr. 5, 2016) (Moran, SM) In this case, the special master denied entitlement for two reasons: 1) Petitioner’s theory under Althen prong 1 was not persuasive, and 2) Petitioner’s rheumatoid arthritis was preexisting.  Petitioner was asymptomatic at the time of the vaccine, although she had a history of […]

Lord v. HHS, (Fed. Cl. Spec. Mstr. Feb. 9, 2016) (Dorsey, CSM) This is another case finding that petitioner failed to show preponderant evidence that vaccines are an exogenous stressor for purposes of the Triple Risk Model of SIDS.  The petitioner also failed to show that recognized extrinsic risk factors, and URIs in particular, act […]

Mostovoy v. HHS, (Fed. Cl. Spec. Mstr. Feb. 4, 2016) (Dorsey, CSM) In this omnibus proceeding, the court awarded the highest hourly rate requested, under McCulloch. However, petitioner’s interim fees were reduced by about 1/3. The Court held there were four basic reasons for the reductions. First, counsel billed for multiple hours of administrative work, […]

R.K. v. HHS, (Fed. Cl. Feb. 29, 2016) (Braden, J) The special master had ruled that both the minor child’s name and the parents’ names would be changed to initials but declined to redact the case number.  On appeal, petitioner argued that the use of Jane Doe and John Doe provides better privacy protection than […]

Waterman v. HHS, (Fed. Cl. Spec. Mstr. Feb. 5, 2016) (Hamilton-Fieldman, SM) The Court resolved an onset issue in favor of petitioner, who did not seek treatment for her urticaria for two months.  The special master found in favor of causation, holding that this was a classic case of challenge-rechallenge.  Petitioner had developed a rash […]

Tarsell v. HHS, (Fed. Cl. Spec. Mstr. Feb. 16, 2016) (Moran, SM) The theory of the case was that the decedent developed an arrhythmia from Gardasil which caused her death.  Petitioner brought an immunologist and a cardiologist to hearing.  The mechanism proposed was that the HPV vaccine causes the body to produce antibodies that are […]

Faoro v. HHS, (Fed. Cl. Spec. Mstr. Jan. 29, 2016) (Dorsey, CSM) This case differed from all of the prior SCN1A cases, in which compensation was denied because the child, in this case, did not have a de novo mutation.  Rather, the mutation was shared by the mother, who was healthy.  The mutation involved a […]

Sanchez v. HHS,  (Fed. Cl. Spec. Mstr. Feb. 17, 2016) (Moran, SM) Petitioner moved for interim fees pre-hearing.  The special master found that a reasonable basis existed at least through the point in time where genetic testing was obtained on the child, and awarded fees through that date. Respondent challenged reasonable basis notwithstanding that Petitioner […]

Gray v. HIS, (Fed. Cl. Spec. Mstr. Feb. 24, 2016) (Gowen, SM) The special master followed Special Master Moran’s decision in Hodge, and held that mental incapacity can present an “extraordinary circumstance” warranting equitable tolling of the Act’s statute of limitations. Analogizing to veterans’ benefits case law, the Special Master held that a petitioner must […]

Hodge v. HHS, (Fed. Cl. Spec. Mstr. Dec. 21, 2015) (Moran, SM) Decision on Remand – Equitable Tolling Established Respondent had moved to dismiss Petitioner’s claim as untimely. The Special Master initially had rejected the argument that the statute of limitations should be equitably tolled, but Petitioner appealed.  The reviewing judge had vacated the original […]

Ruppert v. HHS, (Fed. Cl. Spec. Mstr. Nov. 6, 2015) (Gowen, SM) Attorney’s Fees and Costs – Reasonable Basis The Special Master held, on a motion for reconsideration, that the fact that Petitioner had obtained a negative expert report in the early stages of the case did not preclude Petitioner from establishing a reasonable basis […]

Griffin v. HHS, (Fed. Cl. Dec. 7, 2015) (Bruggink, J) Denial of Motion for Review – Petitioner not an “Employee” of U.S. Respondent’s motion for summary judgment, arguing that the Petitioner was not covered by the Vaccine Act, had been granted.  The Petitioner was an independent contractor with DOD, who received an influenza vaccine in […]

Canuto v. HHS, (Fed. Cl. Spec. Mstr. Dec. 18, 2015) (Hastings, SM) No Entitlement to Causation – Autism Omnibus Case These pro se petitioners argued that the DTP or DTaP vaccines caused their child to suffer fever, seizures, and encephalitis, thereby causing autism. Petitioners’ expert report “offer[ed] no causal theory whatsoever,” even assuming encephalitis or […]

Kenney v. HHS, (Fed. Cl. Spec. Mstr. Jan. 16, 2015) (Moran, SM) Denial of Entitlement – Autoimmune Encephalitis Because Petitioner did not establish that she had autoimmune encephalitis, the condition she alleged was vaccine-caused, she could not prevail.  The special master found that her clinical presentation greatly differed from how typical cases of autoimmune epilepsy […]

Morgan v. HHS, (Fed. Cl.  Spec. Mstr. Dec. 10, 2015) (Gowen, SM) Entitlement to Compensation – Ulcerative Colitis caused by HPV Vaccination Petitioner’s expert, her treating physician, opined that non-specific immunomodulatory effects of the Gardasil vaccination could cause ulcerative colitis in susceptible individuals. He explained that although non-specific immunomodulatory effects have not yet been studied […]

Patel v. HHS, (Fed. Cl. Spec. Mstr. Jan. 8, 2016) (Moran, SM) Attorney’s Fees – No Reasonable Basis The special master found there was no evidence supporting a reasonable basis for the claim because 1) no records demonstrated that any injury lasted six months; 2) no evidence existed that the HPV vaccination caused a problem […]

R.K. v. HHS, (Fed. Cl. Feb. 12, 2016) (Braden, J) Denial of Entitlement Affirmed – Mitochondrial Autism – No Judicial Estoppel The Special Master had denied entitlement, finding that 1) the evidence failed to establish that the child had a mitochondrial disorder, a prerequisite for the medical theory; 2) the evidence showed that the child […]

Sturdivant v. HHS, (Fed. Cl. Spec. Mstr. Jan. 21, 2016) (Hastings, SM) No Entitlement to Causation – Autism Omnibus Case; Warning to Counsel Regarding Reasonable Basis The Court first held that a table encephalopathy had not been established because 1) a table vaccine had not been given, and 2) an encephalopathy, as defined by the […]

Goodings v. HHS, (Fed. Cl. Spec. Mstr. Dec. 28, 2015) (Hamilton-Fieldman) The special master held that a reasonable basis existed where petitioner held a reasonable belief that the first symptom of primary ovarian failure occurred within three years of the vaccine date.  Although it may have appeared that the symptoms could have preceded that vaccination, […]

Tadio v. HHS, (Fed. Cl. Spec. Mstr. Nov. 25, 2015) (Gowen, SM) In this case, a minor child had received compensation pursuant to a settlement, and the award was to be payable to the guardians/conservators of the child, per the stipulation.  The stipulation further conditioned payment to Petitioners on their being “duly authorized to serve […]

Simmons v. HHS, (Fed. Cl. Spec. Mstr. Oct. 30, 2015) (Millman, SM) In this unusual case, both experts agreed that Petitioner suffered an immediate hypersensitivity reaction to TDaP, an anaphylactoid-like episode.  The experts disagreed whether Petitioner’s continuing immune symptoms, culminating in Addison’s disease, were a sequela of that initial reaction. The immediate allergic reaction to […]

Rodd v. HHS, (Fed. Cl. Spec. Mstr. Nov. 13, 2015) (Gowen, SM) Respondent primarily defended the case on the basis that Petitioner had symptoms within one day of his vaccination, which would be too soon for an autoimmune reaction.  However, Petitioner had two distinct problems, carpal tunnel syndrome, and polymyositis/polyarthralgia, and only the former manifested […]

Price v. HHS, (Fed. Cl. Spec. Mstr. Oct. 29, 2015) (Gowen, SM) The Court found that Petitioner proved a Table Anaphylaxis—within the required four hours of receipt of the DTaP and MMR vaccinations, two minutes in this case and that the ongoing seizures were a result of the anaphylactic injury. Petitioner’s expert testified that Petitioner […]

Perez v. HHS, (Fed. Cl. Spec. Mstr. Dec. 8, 2015) (Hamilton-Fieldman, SM) In this case, Petitioner’s expert was not claiming that homology between the tetanus vaccine and myelin could cause GBS through the process of molecular mimicry, rather it was argued that a tetanus vaccine can “rev up” an individual’s innate immune system, causing the […]

Hardy v. HHS, (Fed. CL. Spec. Mstr. Nov. 3, 2015) (Hastings, SM) The Court held that Petitioners failed to demonstrate either that the child suffered a Table encephalopathy, or that the vaccines caused, or aggravated, her neurodevelopmental disorder.   With regard to the table claim, the medical records offered no support whatsoever that the child suffered […]

Halverson v. HHS, (Fed. Cl. Spec. Mstr. Oct. 29, 2015) (Roth, SM) Petitioner had informally requested information from Sanofi Pasteur, manufacturer of Fluzone vaccine. Sanofi Pasteur objected, and Petitioner moved for issuance of a subpoena.  Petitioner also submitted a FOIA request to the FDA related to Fluzone.  Specifically, Petitioner sought human and animal data, dose-response […]

Guerrero v. HHS, (Fed. Cl. Nov. 16, 2015) (Williams, J) In this appeal, Petitioner contended that the Special Master, on remand, committed legal error and abused his discretion by reducing the number of hours, recategorizing certain attorney billing entries as paralegal tasks and some paralegal billing entries as clerical tasks, consolidating de minimis billing entries, […]

Graham v. HHS, (Fed. Cl. Nov. 30, 2015) (Braden, J) In the trial court, the special master denied fees in this voluntarily dismissed case.  Petitioner appealed the denial of fees, contending that the special master had erroneously interpreted the reasonable basis standard.  The reviewing court held that Petitioner misconstrued the Supreme Court’s reference to frivolous […]

Godfrey v. HHS, (Fed. Cl. Spec. Mstr. October 27, 2015) (Corcoran, SM) Remand decision after appeals court agreed that the special master should consider the Federal Circuit’s intervening decision in Koehn v. Sec’y of Health & Human Servs., 773 F.3d 1239 (Fed. Cir. 2014) – and, in particular, whether its discussion of a similar causation […]

Avchen v. HHS, (Fed. Cl. Spec. Mstr. Dec. 4, 2015) (Moran, SM) In this conceded SIRVA case, Respondent opposed the time and costs associated with a senior attorney’s visit to a client’s home in California as unnecessary under the facts of the case.  Petitioner argued that in-person meetings give the attorney “the opportunity to… put […]

Scharffenberger v. HHS, (Fed. Cl. Spec. Mstr. Nov. 10, 2015) (Williams, J) The Special Master had reduced a DC vaccine attorney’s hourly rate of $361 to $305.  Petitioner argued that the Special Master had erroneously applied a rate based on Vaccine Act practitioners generally instead of the District of Columbia forum rate. The reviewing judge […]

Means v. HHS, (Fed. Cl. Spec. Mstr. Oct. 13, 2015) (Dorsey, CSM) Susac’s Syndrome is a condition diagnosed in patients who experience an identifiable triad of symptoms: an encephalopathy, branch retinal artery occlusion, and hearing loss.  It is an autoimmune endotheliopathy.  It can be mistaken for MS or ADEM.  Information regarding the pathogenesis and natural […]

Lewis v. HHS (Fed. Cl. Spec. Mstr. Oct. 13, 2015) (Moran, SM) The parties disputed whether the onset of Petitioner’s shoulder injury occurred during the table time period, i.e., Respondent alleged that Petitioner’s onset occurred too soon, the day after the vaccine.  Neither party requested a fact hearing, and the Special Master ruled on the […]

D.B. v. HHS, (Fed. Cl. Spec. Mstr. Nov. 18, 2015) (Hamilton-Fieldman, SM) Petitioner had previously moved for dismissal for insufficient proof, which motion had been granted.  The parties had experts and were scheduled to try the case, but counsel, in his motion, “indicated that upon a review of the medical records, he did not believe […]

Day v. HHS,(Fed. Cl. Spec. Mstr. Nov. 13, 2015) (Dorsey, CSM) Neuromyelitis Optica (NMO) is a demyelinating autoimmune disorder consisting of optic neuritis and transverse myelopathy.  In NMO, the immune system becomes confused and begins to attack the body’s astrocytes rather than foreign pathogens, causing swelling in the brain and spinal cord.  NMO-IgG antibodies target […]

Cozart v. HHS, (Fed. Cl. Spec. Mstr. Oct. 15, 2015) (Dorsey, SM)* Petitioners had advanced the Triple-Risk Model for causation – vulnerable infant, critical development period, and exogenous stressor(s).  The autopsy revealed that the infant had a susceptibility factor for SIDS, arcuate nucleus hypoplasia, which causes a malfunction in the 5HT system which regulates ventilation […]

Waterman v. HHS (Fed. Cl. Oct. 23, 2015) (Campbell-Smith, CJ) Petitioners ultimately advanced a theory of a Table Encephalopathy following DTaP and Respondent filed a motion for ruling on the record.  The special master denied compensation, holding that there was no evidence the baby suffered from an encephalopathy or that the death was a sequela […]

McGuire v. HHS, (Fed. Cl. Spec. Mstr. Sep. 18, 2015) (Moran, SM) The bottom line holding is that the Petitioner “failed to present a reliable basis for concluding, on a more-likely-than-not basis, that the HPV vaccination can cause headaches that last for months and years.” As a preliminary matter, the Court accepted the parties’ stipulation […]

McCulloch v. HHS, (Fed. Cl. Spec. Mstr. Sep, 1, 2015 ) (Gowen, SM) Although the Court noted that the relevant “forum” for purposes of forum rates in the Vaccine Program was Washington, D.C., the court went on to hold that the appropriate forum was actually the Vaccine Program itself. The Special Master held that the […]

Lamare v. HHS, (Fed. Cl. Jul. 29, 2015) (Horn, J) In an interim fees decision, the special master had included information regarding the Petitioner’s medical condition.  As Petitioner was an adult, the case style reflected her full name.  Petitioner filed a motion to redact the Petitioner’s name and replace it with her initials, or alternatively […]

Kenzora v. HHS, (Fed. Cl. Spec. Mstr. Sep. 25, 2015) (Dorsey, CSM) A transverse myelitis case had been compensated in 2013, and provided for an annuity payment of $6000 per month for 5 years, life contingent, increasing at 3% compounded annually.  In 2015, Petitioner filed a Motion for Relief from Judgment, asserting that his monthly […]

J.T. v. HHS, (Fed. Cl. Spec. Mstr. Oct. 13, 2015) (Millman, SM) In this damages case, a dispute arose between the parties as to the appropriate methodology to calculate lost wages and they sought guidance from the special master. The Petitioner was preparing to embark on a new business venture when he became injured and […]

J.H. v. HHS, (Fed. Cl. Sep. 9, 2015) (Sweeney, J) Petitioner suffered from severe OCD, other mental illness, and cognitive disturbances prior to his vaccine injury.  At age 18, he developed a demyelinating brain injury post-Hepatitis B vaccination, however, the brain MRI confirming this was done only 2 months prior to the expiration of the […]

Cole v. HHS, (Fed. Cl. Spec. Mstr. Sep. 4, 2015) (Moran, SM) Citing Chuisano, the Court observed that “a petitioner satisfies the reasonable basis standard by presenting some evidence that supports the claim asserted in the petition.”  Respondent challenged reasonable basis because a vaccine record was never filed, resulting in the ultimate dismissal of the […]

Al-Uffi v. HHS, (Fed. Cl. Spec. Mstr. Sep. 30, 2015) (Corcoran, SM) Under Avera, the following criteria are considered in determining whether an award of interim fees is appropriate: 1) protracted proceedings; 2) costly expert testimony; and 3) undue hardship.  In this case,  Respondent argued that all three criteria had to be met.  The Court […]

Allen v. HHS, (Fed. Cl. Spec. Mstr. Sep. 26, 2015) (Vowell, SM) The Court, in one of its last decisions on the bench, wrote a 115-page opinion in this former OAP case.  The theory of the case was that 1) the child had an underlying mitochondrial disorder that made her vulnerable to the inflammatory effects […]

Santini v. HHS, Case No. 06-725V (Fed. Cl. Jun. 30, 2015) (Braden, J) This case was tried jointly with Barclay v. HHS, also in this summary.  Both cases involved an allegation that the DTaP vaccine triggered or worsened Dravet’s syndrome/SMEI in a child with an SCN1A mutation.  In the instant case, the Special Master held […]

Bushnell v. HHS, Case No. 02-1648V (Fed. Cl. Spec. Mstr. Jun. 12, 2015) (Hastings) Former OAP case alleging that a mitochondrial disorder caused an “enzyme deficiency,” leading to an “accumulation of Thimerosal contained in the vaccines he was administered,” leading to ASD. An expert report for Petitioner was filed by Dr. Donald Marks (microbiology, internal […]

Whitney v. HHS, Case No. 10-809V (Fed. Cl. Aug. 12, 2015) (Lettow, J) The Special Master had denied entitlement in this case which alleged Transverse Myelitis caused by DTaP vaccine, finding a failure of prong 2 under Althen, in light of the HHV-6 infection (this decision was included in last month’s case law summary). The […]

Sumner v. HHS, Case No. 99-946V (Fed. Cl. Spec. Mstr. Aug. 13, 2015) (Hamilton-Fieldman, SM) Petitioner alleged that as a result of the administration of MMR vaccine while pregnant, her child suffered from brain malformation, hydrocephalus, seizures, and developmental delays.  Specifically, it was alleged that the rubella component had caused a partial rubella infection in […]

Nuttal v. HHS, (Fed. Cl. Aug. 19, 2015) (Firestone, J) Petitioner advanced a theory that his CDD was the sequela of a limbic encephalitis caused by DTaP or MMR, and the case was tried on three issues 1) whether the child experienced brain inflammation, 2) whether the inflammation was severe enough to result in the […]

Jump v. HHS, Case No. 11-301V (Fla. Spec. Mstr. Aug. 31, 2015) (Hamilton-Fieldman, SM) In this case, experts for both sides agreed that Petitioner was more likely than not in the “preclinical stage” of Rheumatoid Arthritis at the time of her TDaP vaccine, potentially raising the issue of significant aggravation.  However, the special master, analyzing […]

Godfrey v. HHS, Case No. 10-565V (Fed. Cl. Aug. 19, 2015) (Firestone, J) Case Remanded for Reconsideration of Prong 1 in Light of Circuit’s Decision in Koehn Which Involved Same Experts, Same Vaccine (HPV), Same Theory and Similar Injury (SJIA vs. JAS). Appeal from a denial of entitlement in a case alleging juvenile ankylosing spondylitis […]

Whitney v. HHS, Case No. 10-809V (Fed. Cl. Spec. Mstr. Jul. 20, 2015) (Moran) Testifying for Petitioner were Yuval Shafrir (pediatric neurologist), and James Oleske (immunology and pediatric infectious disease) Testifying for Respondent were Raoul Wientzen (pediatric infectious disease) and Max Wiznitzer (pediatric neurology). Petitioners presented a theory that the DTaP vaccine caused Transverse Myelitis […]

Mora v. HHS, Case No. 13-421V (Fed. Cl. Jun. 30, 2015) (Kaplan, J) In this case, the Special Master had denied a Rule 60(b) motion for relief from judgment premised on counsel’s unawareness that design defect claims had been foreclosed by the Supreme Court decision in Bruesewitz.  This case involved a child rendered paraplegic from […]

Livingston v. HHS, Case No. 12-268V (Fed. Cl. Spec. Mstr. Jun.26, 2015) (Corcoran) This case was previously dismissed after an exhaustive inquiry revealed that the child had not actually received the Rotateq vaccine as the parents believed, but rather Rondec, a prescription cough and cold medicine.  The child was alleged to have been administered this […]

Holt v. HHS, Case No. 05-0136V (Fed. Cl. Spec. Mstr. Jun. 24, 2015) (Vowell, CSM) Former OAP case, alleging significant aggravation of a mitochondrial disorder resulting in neurological symptoms somewhat resembling ASD.  The court noted, in a 104-page opinion, a “trend by some former OAP petitioners to recharacterize their children’s diagnoses as something other than […]

D’Angiolini v. HHS, Case No. 99-578V (Fed. Cl. Jul. 27, 2015) (Block, J) Appeal from a denial of entitlement in a case alleging SLE, CFS and ASIA attributable to Hepatitis B vaccination.  The Special Master had ruled that Petitioner failed to establish that he suffered from CFS and SLE, and had failed to establish that […]

­Barclay v. HHS, Case No. 07-605V (Fed. Cl. Jul. 10, 2015) (Bruggink, J) This case was tried jointly with Santini v. HHS, also in this summary.  Both cases involved an allegation that the DTaP vaccine triggered or worsened Dravet’s syndrome/SMEI in a child with an SCN1A mutation. Testifying for the petitioner had been Jean-Ronel Corbier, […]

D.S. v . HHS, No. 10-077V (Fed. Cl. Spec. Mstr. May 19, 2015)(Dorsey) Entitlement decision holding that petitioner had established that (1) she had the Miller-Fisher variant of GBS and (2) that it was caused by the Gardasil vaccine. Testifying for the petitioner was David Axelrod, M.D., an immunologist, and Stephen Schecter, M.D. a treating […]

Scharffenberger v. HHS, No. 11-221V (Fed. Cl Spec. Mstr. May 15, 2015) (Corcoran) Attorney’s Fees and Costs decision holding that the appropriate forum for an attorney practicing in Washington, DC, for purposes of determining the forum rate, is not Washington, DC, or even the Court of Federal Claims, but rather the Vaccine Program itself.  Thus, […]

O’Neill v HHS, No. 08-243V (Fed. Cl. Spec. Mstr. April 28, 2015)(Hamilton-Fieldman) Decision on Attorney’s Fees and Costs.  The court awarded the hourly rates requested for all of the firm’s paralegals and all but one of the firm’s attorneys, over the Respondent’s objection.  The court decreased travel time to 50% of the rate billed for […]

Mosley v. HHS, No. 08-724V (Fed. Cl. Spec. Mstr. Apr. 27, 2015)(Millman) Denial of entitlement on remand.  Petitioner had alleged her transverse myelitis (TM) was caused by a tetanus vaccine and the special master denied the claim after a hearing.  Petitioner appealed and the entitlement decision was vacated and remanded with instructions to consider and […]

Milik v. HHS, No. 01-064V (Fed. Cl. May 14, 2015) (Campbell-Smith, CJ) Appeal from a denial of compensation in a case alleging neurological injuries resulting from MMR vaccine; denial of entitlement was sustained. Nizar Souayah, MD, had testified for Petitioners, and Michael Kohrman, MD, had testified for Respondent. On appeal, Petitioners objected to the special […]

Guerrero v. HHS, No. 12-689V (Fed. Cl. Spec. Mstr. May 22, 2015) (Moran) Attorneys’ fees decision on remand, after CFC, vacated prior fee decision.  In the lodestar analysis, hourly rates were not at issue but a reasonable number of hours was in dispute.  In its decision, the court 1) reduced the number of hours billed […]

Brook v. HHS, No. 04-405V (Fed. Cl. Spec. Mstr. May 14, 2015)(Hastings) Denial of entitlement in a case alleging an autoimmune encephalopathy resulting in an autism spectrum disorder (ASD) caused in fact, or significantly aggravated, by MMR, varicella, and/or pneumococcal vaccines. Dr. Joseph Bellanti, an immunologist, testified for Petitioner and opined that the child had […]

McCulloch v. HHS, No. 09-023V (Fed. Cl. Spec. Mstr. May 22, 2015) (Gowen) Gardasil (HPV) vaccine was found to have caused child’s autoimmune encephalitis (ALE) and resultant seizures through molecular mimicry between the Aquaporin 4 (AQP-4) receptors in the brain and HPV strains 16 and 18 in the vaccine. A 12-year-old girl developed a fever, […]