J.M. v. HHS - DTaP, acute encephalopathy and seizure disorder (2014)

On October 29, 2007, Jerime and Rebecca McHerron, as parents and natural guardians of their minor child J.M., filed a petition under the National Childhood Vaccine Injury Act of 1986. They alleged that J.M. suffered acute encephalopathy and a seizure disorder as a result of receiving a Diphtheria-Tetanus-Acellular-Pertussis (DTaP) vaccination on November 1, 2004.

The respondent was the Secretary of Health and Human Services. Petitioners were represented by Anne Carrion Toale of Maglio Christopher & Toale, PA, and respondent was represented by Linda Sara Renzi of the United States Department of Justice.

On May 27, 2014, petitioners filed a motion to dismiss their petition, stating that an investigation of the facts and science, along with developments in case law, indicated they would be unable to prove entitlement to compensation under the Vaccine Program. They understood that dismissal would result in a judgment against them and end their rights within the Vaccine Program, but would preserve their ability to pursue a civil action outside the program.

Respondent did not file a response to this motion. Special Master Nora Beth Dorsey issued a decision on June 18, 2014, dismissing the petition for insufficient proof.

The decision noted that petitioners needed to prove either a "Table Injury" or that J.M.'s injury was actually caused by the vaccine. The Special Master found that petitioners had not provided preponderant evidence of a Table Injury.

Although petitioners had initially offered a medical expert opinion on causation, subsequent genetic testing revealed that J.M. had an SCN1A gene variant linked to severe seizures. The record did not contain a medical expert's opinion connecting J.M.'s encephalopathy and seizure disorder to the vaccination in light of this genetic finding.

The Special Master also noted that the medical records alone were insufficient to establish entitlement, and a competent physician's opinion connecting the injuries and vaccinations was required but not provided. Therefore, the petition was denied and dismissed.

On September 2, 2014, Special Master Nora Beth Dorsey issued a decision regarding attorneys' fees and costs. The parties had filed a Stipulation of Facts Concerning Attorneys' Fees and Costs on August 29, 2014.

According to the stipulation, the parties agreed to a total award of attorneys' fees and costs in the amount of $61,915.98. Petitioners' counsel represented that petitioners had advanced $615.98 in reimbursable costs.

The Special Master granted the request, awarding $61,300.00 jointly payable to petitioners and their attorney, Anne C. Toale, and $615.98 payable to petitioners only.

No Vaccine Act compensation was awarded for J.M.'s alleged injury.