VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_07-vv-00753
Package ID: USCOURTS-cofc-1_07-vv-00753
Petitioner: J.M.
Filed: 2007-10-29
Decided: 2014-06-18
Vaccine: Dtap
Vaccination date: 2004-11-01
Condition: acute encephalopathy and seizure disorder
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
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.

Theory of causation field:
Petitioners Jerime and Rebecca McHerron, on behalf of minor J.M., alleged that a DTaP vaccine administered on November 1, 2004, caused acute encephalopathy and a seizure disorder. The petition was filed on October 29, 2007. Petitioners moved for dismissal on May 27, 2014, stating they could not prove entitlement due to investigation of facts/science and case law evolution. Special Master Nora Beth Dorsey dismissed the petition on June 18, 2014, finding insufficient proof of a Table injury or actual causation. While an initial expert opinion was offered, subsequent genetic testing revealed J.M. had an SCN1A gene variant linked to severe seizures. The record lacked a medical expert opinion connecting the alleged injuries to the vaccination in light of the SCN1A mutation, and medical records alone were insufficient. No compensation was awarded for the alleged injury. A separate decision on September 2, 2014, awarded attorneys' fees and costs totaling $61,915.98 ($61,300.00 attorney fees, $615.98 costs) based on a stipulation between petitioners' counsel Anne Carrion Toale and respondent. The entitlement decision was issued June 18, 2014, and the fees decision on September 2, 2014.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_07-vv-00753-0
Date issued/filed: 2014-07-09
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 06/18/2014) regarding 87 DECISION of Special Master Signed by Special Master Nora Beth Dorsey. (tlj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:07-vv-00753-UNJ Document 88 Filed 07/09/14 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 07-753V
Filed: June 18, 2014
* * * * * * * * * * * * * * * * * * * * * * * * *
JERIME MCHERRON and REBECCA *
MCHERRON, as parents and natural *
guardians of J.M., a minor, * UNPUBLISHED
*
Petitioners, *
* Special Master Dorsey
v. *
*
SECRETARY OF HEALTH * Petitioners’ Dismissal Motion;
AND HUMAN SERVICES, * Insufficient Proof of Causation;
* Vaccine Act Entitlement; Dtap
Respondent. * Vaccine; Acute Encephalopathy
* and Seizure Disorder
* * * * * * * * * * * * * * * * * * * * * * * * *
Anne Carrion Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioners.
Linda Sara Renzi, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 29, 2007, Jerime and Rebecca McHerron, as parents and natural guardians of
J.M., a minor, (“petitioners”) filed a petition pursuant to the National Childhood Vaccine Injury
Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine Act”). Petitioners alleged that, as a
result of receiving a Diphtheria-Tetanus-Acellular-Pertussis (“Dtap”) vaccination on November
1, 2004, J.M. suffered an acute encephalopathy and seizure disorder.
On May 27, 2014, petitioners filed a motion for a decision dismissing their petition. In
their motion, petitioners state that “[a]n investigation of the facts and science supporting their
case, as well as an evolution of the case law, has demonstrated … that they will be unable to
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 and note (2006)). In accordance with Vaccine Rule 18(b), a
party has 14 days to identify and move to delete medical or other information that satisfies the criteria in §
300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a
proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits
within the requirements of that provision, such material will be deleted from public access.
1

Case 1:07-vv-00753-UNJ Document 88 Filed 07/09/14 Page 2 of 2
prove that they are entitled to compensation in the Vaccine Program.” Petitioners state that it
would be unreasonable to proceed further and that they understand a decision dismissing their
petition will result in a judgment against them and will end all of their rights in the Vaccine
Program. Petitioners also state their intent to protect their rights to file a civil action.
Respondent did not file a response to petitioners’ motion.
To receive compensation under the Vaccine Act, petitioners must prove either 1) that
J.M. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of the child’s vaccinations or 2) that J.M. suffered an injury that was
actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). The undersigned
finds that petitioners have not provided preponderant evidence that J.M. suffered a “Table
Injury.” While petitioners initially offered a medical expert’s opinion on causation, subsequent
genetic testing revealed J.M. has the SCN1A gene variant linked to severe seizures. The record
does not contain a medical expert’s opinion connecting the injuries and vaccination in light of
the SCN1A gene mutation.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. The petition must be supported by either medical records or the opinion
of a competent physician. § 300aa-13(a)(1). Here, because the medical records alone are
insufficient to establish entitlement to compensation, a medical opinion connecting the injuries
and vaccinations must be offered in support. However, petitioners have provided no such
opinion.
The only alternative remaining is to DENY this petition. Thus, this case is dismissed
for insufficient proof. In the absence of a motion for review, the Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
/s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_07-vv-00753-1
Date issued/filed: 2014-09-23
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 09/02/2014) regarding 92 DECISION Fees Stipulation/Proffer Signed by Special Master Nora Beth Dorsey. (tlj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:07-vv-00753-UNJ Document 95 Filed 09/23/14 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 2, 2014
* * * * * * * * * * * * * * UNPUBLISHED
JERIME MCHERRON and REBECCA *
MCHERRON, as parents and natural *
Guardians of J.M., a minor, * No. 07-753V
*
Petitioners, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Reasonable Amount Requested to which
AND HUMAN SERVICES, * Respondent Does not Object.
*
Respondent. *
*
* * * * * * * * * * * * *
Anne Carrion Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioners.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
ATTORNEYS’ FEES AND COSTS DECISION1
On October 29, 2007, Jerime and Rebecca McHerron, as parents and natural guardians of
J.M., a minor, (“petitioners”) filed a petition pursuant to the National Childhood Vaccine Injury
Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine Act”). Petitioners alleged that, as a
result of receiving a Diphtheria-Tetanus-Acellular-Pertussis (“Dtap”) vaccination on November
1, 2004, J.M. suffered an acute encephalopathy and seizure disorder. On June 18, 2014, a
decision was entered denying compensation to petitioners.
On August 29, 2014, the parties filed a Stipulation of Facts Concerning Attorneys’ Fees
and Costs. According to the stipulation, the parties stipulate to a total award to petitioners of
attorneys’ fees and costs in the amount of $61,915.98. In accordance with General Order #9,
petitioners’ counsel represents that petitioners advanced $615.98 in reimbursable costs in pursuit
1 Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). As provided by Vaccine Rule 18(b), each party has 14 days within which
to request 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). Otherwise, the entire decision will be available to the
public. Id.
1

Case 1:07-vv-00753-UNJ Document 95 Filed 09/23/14 Page 2 of 2
of their claim.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. §
300 aa-15(e). Based on the reasonableness of the parties’ stipulation, the undersigned GRANTS
the request for approval and payment of attorneys’ fees and costs.
Accordingly, an award should be made as follows:
(1) in the form of a check jointly payable to petitioners and to petitioners’ attorney, Anne
C. Toale, in the amount of $61,300.00,and
(2) in the form of a check payable to petitioners only in the amount of $615.98.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.2
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2