Sherry Lerwick v. HHS - DTaP, acute disseminated encephalomyelitis (ADEM) (2014)

On December 12, 2006, Sherry Lerwick, as legal representative for her minor son B.L., filed a petition alleging that the DTaP vaccine administered on August 3, 2004, caused B.L. to develop acute disseminated encephalomyelitis (ADEM). B.L., born in April 2004, was a healthy infant until receiving vaccinations, after which he developed seizures and was diagnosed with ADEM, resulting in catastrophic and permanent neurological damage.

By the time of the damages hearing in September 2013, B.L., then nine years old, suffered from severe cerebral palsy and treatment-resistant epilepsy, requiring assistance with all daily activities and communicating at a pre-toddler level. His mother, Ms.

Lerwick, organized her life around his care, with support from California's Medi-Cal and regional center programs providing approximately 40 hours per week of licensed vocational nurse (LVN) care and 36 hours per week of unlicensed aide care, supplemented by school district services. The government did not contest causation, and Special Master Christian J.

Moran found B.L. entitled to compensation on September 8, 2011. The case proceeded to a damages hearing, focusing on two disputed issues: attendant care and long-term residential placement.

Regarding attendant care, Ms. Lerwick's life care planner recommended 24-hour LVN care, while the government's planner proposed 8 hours of LVN care daily, supplemented by aide care.

On the issue of residential placement, Ms. Lerwick advocated for B.L. to remain in her home, while the government proposed a transition to a residential care facility at age 25.

In rulings issued in 2014, Special Master Moran addressed these disputes. He denied the request for 24-hour LVN care, finding that B.L.'s seizure activity, aspiration risk, and skin infection risk did not necessitate continuous nursing supervision.

He accepted the government's plan for 8 hours of LVN care per day at $37 per hour, plus aide-level care for the remaining hours, with aide time increasing as B.L. aged and live-in aide care beginning at age 23. On the residential placement issue, Special Master Moran ruled in favor of Ms.

Lerwick, interpreting Section 15(c) of the Vaccine Act to mandate compensation sufficient for B.L. to remain living at home for life, without an age cutoff or parental capacity qualification. The government's proposed transition plan was deemed insufficient to meet this statutory requirement.

An interim compensation award of $325,000 was issued on April 16, 2014, comprising $75,000 for past unreimbursed medical expenses and $250,000 for pain and suffering. The final damages award, adopted by the Special Master on August 15, 2014, totaled $1,060,424.

Petitioner subsequently filed a motion for review, challenging the compensation rate for aide hours, arguing they should be compensated at the LVN rate. Judge Margaret Sweeney of the Court of Federal Claims denied this motion on January 30, 2015, finding the Special Master's acceptance of the government's life care planner's assessment over petitioner's characterization of agency practice was not arbitrary or capricious.

Attorneys' fees and costs totaled $394,000, including $300,000 in interim fees and a final award of $94,000 ($69,406 for fees and costs, and $24,594 for a probate court bond).