VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_07-vv-00804
Package ID: USCOURTS-cofc-1_07-vv-00804
Petitioner: B.E.
Filed: 2007-11-15
Decided: 2014-07-22
Vaccine: MMR
Vaccination date: 2004-11-23
Condition: Pervasive Developmental Disorder-Not Otherwise Specified (PDD-NOS)
Outcome: dismissed
Award amount USD: 49149

AI-assisted case summary:
Jessica and Kain Engels, parents of B.E., filed a petition for vaccine compensation on November 15, 2007, alleging that B.E. suffered a neurodevelopmental disorder, specifically Pervasive Developmental Disorder-Not Otherwise Specified (PDD-NOS), as a result of vaccinations received on November 23, 2004. The initial petition opted into the Omnibus Autism Proceeding. An amended petition alleged that the MMR, Hib, varicella, and influenza vaccines caused an adverse reaction including fever, seizure, vomiting, and altered mental status, followed by residual effects of developmental delay. Following a fact hearing, the Chief Special Master found B.E.'s contemporaneous medical records more reliable than the petitioner's testimony and determined that the petitioner failed to demonstrate a Table Injury or that the injuries were vaccine-caused. Consequently, the petition was dismissed for insufficient proof on January 13, 2014. Subsequently, on May 28, 2014, the court awarded $43,335.47 in attorneys' fees and costs, and a supplemental award of $5,814.00 was made on July 22, 2014, for a total award of $49,149.00.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_07-vv-00804-0
Date issued/filed: 2014-01-13
Pages: 3
Docket text: PUBLIC DECISION Signed by Chief Special Master Denise Kathryn Vowell. (tjk) Copy to parties.
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Case 1:07-vv-00804-UNJ Document 60 Filed 01/13/14 Page 1 of 3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 07-804V
Filed: January 13, 2014
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
JESSICA ENGELS and KAIN ENGELS, *
as parents of B.E., *
* Dismissal; Measles, Mumps, Rubella;
Petitioners, * MMR; Haemophilus Influenzae Type B;
v. * Hib; Varicella; Influenza; Pervasive
* Developmental Disorder-Not Otherwise
SECRETARY OF HEALTH * Specified; PDD-NOS; Autism Spectrum
AND HUMAN SERVICES, * Disorder; ASD.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Donald M. Gerstein, Esq., Richard Gage, P.C., Cheyenne, WY, for petitioners.
Lynn E. Ricciardella, Esq., U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION1
Vowell, Chief Special Master:
On November 15, 2007, Jessica Engels [“petitioner”],2 filed a Short-Form Petition
for Vaccine Compensation3 under the National Vaccine Injury Compensation Program,
1 Because this decision contains a reasoned explanation for my action in this case, I intend 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, 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.
2 On July 3, 2013, I granted petitioner’s motion to amend the caption to add B.E.’s father, Kain Engels, as
a petitioner and to replace the vaccinee’s name with his initials. Because Jessica Engels was the sole
petitioner until several months after the February 5, 2013 fact hearing, I referred to a singular “petitioner”
throughout my December 20, 2013 Order and Ruling on Facts. For consistency, I again will refer to a
singular petitioner in this Decision.
3 By electing to file a Short-Form Autism Petition for Vaccine Compensation, petitioner alleges that:
[a]s a direct result of one or more vaccinations covered under the National Vaccine Injury
Compensation Program, the vaccinee in question has developed a neurodevelopmental
disorder, consisting of an Autism Spectrum Disorder [“ASD”] or a similar disorder. This
disorder was caused by a measles-mumps-rubella (MMR) vaccination; by the
“thimerosal” ingredient in certain Diphtheria-Tetanus-Pertussis (DTP), Diphtheria-

Case 1:07-vv-00804-UNJ Document 60 Filed 01/13/14 Page 2 of 3
2 U.S.C. §300aa-10, et seq.4 [the “Vaccine Act” or “Program”], on behalf of her minor
son, B.E. By filing a short-form petition, petitioner opted into the Omnibus Autism
Proceeding [“OAP”].
On February 28, 2012, after the conclusion of the OAP test cases, petitioner filed
an amended petition, alleging that the MMR, Hib, varicella, and influenza vaccinations
B.E. received on November 23, 2004, caused him to suffer an adverse reaction,
including “fever, seizure, vomiting, and altered mental status” six days later. Amended
Petition at ¶¶ 1, 3. Petitioner further alleged that B.E. suffered from residual effects of
his vaccine injury, including developmental delay, for more than six months. Id. at ¶ 5.
On June 25, 2012, I ordered petitioner to file an expert report. Before complying
with my order to file an expert report, petitioner requested a fact hearing to resolve gaps
in B.E.’s pediatric record due to his pediatrician’s alleged failure to record petitioner’s
concerns about B.E.’s regression. Petitioner’s Request for Fact Only Hearing, filed
Sept. 24, 2012.
Because I determined that a factual dispute existed regarding what transpired
between B.E.’s November 23, 2004 vaccinations and his diagnosis with Pervasive
Developmental Disorder-Not Otherwise Specified [“PDD-NOS”],5 I agreed with petitioner
that a fact hearing was necessary. During the hearing, conducted in Tampa, Florida on
February 5, 2013, Mrs. Engels testified in person.
On December 20, 2013, I issued a fact ruling in which I found B.E.’s
contemporaneous medical records and the non-contemporaneous histories provided to
multiple health care providers to be more reliable than petitioner’s testimony. I ordered
Tetanus-acellular Pertussis (DTaP), Hepatitis B, and Haemophilus Influenza[e] Type B
(HIB) vaccinations; or by some combination of the two.
Autism General Order #1, filed July 3, 2002, Exhibit A, Master Autism Petition for Vaccine Compensation
at 2.
4 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
5 Pervasive Developmental Disorder [“PDD”] was the umbrella term for ASDs used in the Diagnostic and
Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed. text revision 2000)
[“DSM-IV-TR”] at 69. The DSM-IV-TR has since been replaced by the Diagnostic and Statistical Manual
of Mental Disorders (American Psychiatric Association, 5th ed. 2013) [“DSM-V”], which uses the term
“autism spectrum disorder.” Although Mrs. Engels testified that B.E. was diagnosed with PDD (Transcript
at 53), his specific diagnosis is PDD-NOS (Petitioner’s Exhibit 9, p. 4). PDD-NOS involves “‘impairment in
the development of reciprocal social interaction,’ coupled with impairment in either communication skills
or the presence of stereotyped behaviors or interests.” White v. Sec’y, HHS, No. 04-337V, 2011 WL
6176064, at *6 (Fed. Cl. Spec. Mstr. Nov. 22, 2011) (citing DSM-IV-TR at 84).
2

Case 1:07-vv-00804-UNJ Document 60 Filed 01/13/14 Page 3 of 3
petitioner to file an expert report by February 21, 2014, based on the facts I found or, if
the expert disagreed with any factual finding, stating the basis for the disagreement.
On January 10, 2014, petitioner moved for a decision dismissing the petition.
According to petitioner, her expert reviewed my factual findings and concluded that he
could not opine in favor of causation on petitioner’s behalf. Accordingly, petitioner
requests that this court issue a decision dismissing the petition.
To receive compensation under the Program, petitioner must prove either 1) that
B.E. suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of B.E.’s vaccinations, or 2) that B.E. suffered an injury that was
actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the
record did not uncover any evidence that B.E. suffered a “Table Injury.” Further, the
record does not contain persuasive evidence indicating that B.E.’s alleged injury was
vaccine-caused.
Under the Act, petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical
records or by the opinion of a competent physician. § 13(a)(1). In this case, because
there are insufficient medical records supporting petitioner’s claim, a medical opinion
must be offered in support. Petitioner, however, has offered no such opinion that
supports a finding of entitlement.
Adopting my December 20, 2013 factual findings, and based on the record as a
whole, it is clear that petitioner has failed to demonstrate either that B.E. suffered a
“Table Injury” or that B.E.’s injuries were “actually caused” by a vaccination. Thus, this
case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.
Any questions about this order may be directed to my law clerk, Tucker
McCarthy, at (202) 357-6392.
IT IS SO ORDERED.
s/ Denise K. Vowell
Denise K. Vowell
Chief Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_07-vv-00804-1
Date issued/filed: 2014-05-28
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 05/02/2014) regarding 74 DECISION of Special Master - Fees. Signed by Chief Special Master Denise Kathryn Vowell. (tpj) Copy to parties.
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Case 1:07-vv-00804-UNJ Document 77 Filed 05/28/14 Page 1 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 07-804V
Filed: May 2, 2014
(FOR PUBLICATION)
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
JESSICA ENGELS and KAIN ENGELS, *
as parents of B.E., *
Petitioners, * Attorney Fees and Costs;
* Agreed Upon Hourly Rates.
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Esq., Richard Gage, PC, Cheyenne, WY for petitioners
Lynn Ricciardella, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
On January 10, 2014, petitioners moved for a decision dismissing their petition. I
issued my dismissal decision on January 13, 2014. On January 29, 2014, petitioners
filed a motion for award of final attorneys’ fees and reimbursement of costs.
Respondent filed her response on February 18, 2014. After being granted an extension
of time, petitioners filed their reply brief on March 26, 2014.
A status conference was held on April 23, 2014, to discuss the parties’
disagreement over the hourly billing rates for petitioners’ counsel. Following the status
conference, the parties were able to reach an agreement as to petitioners’ counsel’s
hourly billing rates.
For the reasons outlined below, I find that an award of attorneys’ fees and costs
in the amount of $43,335.47 is appropriate in light of the work performed by Mr. Gage
and his firm.
1 Because I have designated this decision to be published, petitioners have 14 days to request redaction
of any material “that includes medical files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise, the entire decision will be publicly available. 42
U.S.C. § 300aa12(d)(4)(B).

Case 1:07-vv-00804-UNJ Document 77 Filed 05/28/14 Page 2 of 5

Case 1:07-vv-00804-UNJ Document 77 Filed 05/28/14 Page 3 of 5

Case 1:07-vv-00804-UNJ Document 77 Filed 05/28/14 Page 4 of 5
submit any billing records of Dr. Kinsbourne, and therefore it was impossible to
determine the reasonableness of his hourly rate. Id. at 8.
On February 25, 2014, petitioners were ordered to file an invoice or other
evidence supporting the work Dr. Kinsbourne performed on their behalf. The invoice,
filed on March 26, 2014 as an attachment to petitioners’ reply brief, indicates that he
spent 4.25 hours reviewing medical records and discussing his opinions with petitioners’
counsel. Doctor Kinsbourne performed his work in September 2012, before petitioners
requested a fact hearing, and in January 2014, after my factual findings were issued.
Applying his $500 hourly rate, Dr. Kinsbourne’s total fee for this case is $2,125.00.
In her status report conveying the parties’ agreement as to the hourly rates for
petitioners’ counsel, respondent objected to the $500.00 hourly rate sought by Dr.
Kinsbourne as being unsupported. She cites to several decisions that compensated Dr.
Kinsbourne at lower hourly rates. Respondent’s Status Report, filed Apr. 29, 2014, at 2
(citing Dingle v. Sec’y, HHS, No. 08-579V, -- Fed. Cl. --, 2014 WL 630473, at *7 (Fed.
Cl. Spec. Mstr. Jan. 24, 2014) (awarding $400 per hour); Hammitt v. Sec’y, HHS, No.
07-170V 2011 WL 1827221, at *7 (Fed. Cl. Spec. Mstr. Apr. 7, 2011) (awarding $300
per hour); Stone v. Sec’y, HHS, No. 90-1041V, 2010 WL 3790297, at *6 (Fed. Cl. Spec.
Mstr. Sept. 9, 2010) (awarding $300 per hour)). I note that in these three cases, Dr.
Kinsbourne wrote an expert report and testified as to a theory of vaccine causation.
Petitioners also addressed Dr. Kinsbourne’s hourly rate in their status report
concerning the parties’ agreement as to their counsel’s hourly rates. Petitioners stress
that in contrast to the cases cited by respondent, “Dr. Kinsbourne’s bills have been paid,
in stipulated fee awards, with no objection from respondent, at his $500 per hour rate.”
Petitioners’ Status Report, filed Apr. 30, 2014, at 2. No citations to such cases were
provided.
I will award $1,500.00 for the work performed by Dr. Kinsbourne in this case.
This amount is not based on a particular hourly rate and instead is a reflection of what I
consider a reasonable amount to have paid an expert to review and discuss this case
with petitioners’ counsel.
II. Conclusion.
I hold petitioners are entitled to reasonable attorneys’ fees and costs pursuant to
§§ 15(b) and (e)(1). For the reasons contained herein, I hereby award $43,335.47,7
which shall be paid as follows:
7
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses
all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4

Case 1:07-vv-00804-UNJ Document 77 Filed 05/28/14 Page 5 of 5
 a lump sum of $42,929.47 in the form of a check payable jointly to
petitioners and petitioners’ counsel of record for petitioners’
attorney fees and costs, and
 a lump sum of $406.00 in the form of a check payable to petitioners,
Jessica and Kain Engels, for their personal litigation costs.
The clerk of the court shall enter judgment in accordance herewith.8
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
8 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
5

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DOCUMENT 3: USCOURTS-cofc-1_07-vv-00804-2
Date issued/filed: 2014-09-02
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 07/22/2014) regarding 78 DECISION of Special Master - Fees. Signed by Chief Special Master Denise Kathryn Vowell. (tpj) Copy to parties.
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Case 1:07-vv-00804-UNJ Document 81 Filed 09/02/14 Page 1 of 2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 07-804V
Filed: July 22, 2014
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
JESSICA ENGELS and KAIN ENGELS, *
as parents of B.E., *
Petitioners, * Attorney Fees and Costs;
* Agreed Upon Hourly Rates.
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Esq., Richard Gage, PC, Cheyenne, WY for petitioners
Lynn Ricciardella, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
In a July 17, 2014, status conference, petitioners’ counsel informed the court that
the fees and costs decision, filed on May 2, 2014, failed to include an award of fees for
work performed by Mr. Karz-Wagman. The May 2 decision had resolved the contested
fees and costs, but inadvertently failed to award these uncontested fees. After
examining the fees and costs application, respondent’s counsel agreed that the fees
claimed for Mr. Karz-Wagman were not contested and that she had no objection to
petitioners request to correct this error.
Based on my review of the petitioners’ motion for final attorneys’ fees and costs,
a supplemental award of $5,814.00 is appropriate.
I hold petitioners are entitled to reasonable attorneys’ fees and costs pursuant to
§§ 15(b) and (e)(1). For the reasons contained herein, I hereby award a lump sum of
$5,814.00 in the form of a check payable jointly to petitioners, Ms. Jessica Engels
and Mr. Kain Engels, and petitioners’ counsel of record, Mr. Richard Gage, for
petitioners’ attorney fees and costs.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, It will be
posted 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
note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
delete medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will delete such
material from public access.

Case 1:07-vv-00804-UNJ Document 81 Filed 09/02/14 Page 2 of 2
The clerk of the court shall enter judgment in accordance herewith.2
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
2 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
2