VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_09-vv-00221 Package ID: USCOURTS-cofc-1_09-vv-00221 Petitioner: D.B. Filed: 2009-04-14 Decided: 2016-01-08 Vaccine: Vaccination date: Condition: Outcome: dismissed Award amount USD: AI-assisted case summary: D.B. filed a petition on April 14, 2009 under the National Childhood Vaccine Injury Compensation Program. The vaccine and alleged injury are not ascertainable from available case documents, as the staging text for the dismissal decision and subsequent orders was not extracted. The special master issued a decision dismissing the petition on January 9, 2014, and judgment entered on January 14, 2014. On January 12, 2015, a new attorney, Diane C. Cooper, entered an appearance on behalf of D.B. On January 13, 2015, petitioner filed a motion to vacate the judgment. Special Master Hamilton-Fieldman denied the motion to vacate on September 4, 2015. On December 21, 2015, the parties filed a Stipulation of Facts regarding final attorneys' fees and costs, agreeing to an award of $14,000.00. Petitioner had not personally incurred any costs during the period of Ms. Cooper's representation. Special Master Hamilton-Fieldman issued a fees decision finding that the motion to vacate judgment had been brought in good faith and that there was a reasonable basis for filing it, and awarded $14,000.00 under 42 U.S.C. § 300aa-15(e)(1), payable jointly to D.B. and counsel Diane C. Cooper of Bruce G. Clark & Associates, P.C. The decision was originally filed on December 21, 2015, and reissued on January 8, 2016 with petitioner's name replaced by initials at petitioner's request. Theory of causation field: Vaccine and injury unknown (granules 0-2 have no extracted text). Petition dismissed Jan 9, 2014; judgment Jan 14, 2014. New counsel filed motion to vacate Jan 13, 2015; denied Sept 4, 2015. Fees $14,000 (stipulated) awarded Jan 8, 2016 for motion to vacate (good faith; reasonable basis; SM Hamilton-Fieldman). NOTE: DB outcome='compensated'/award=14000 corrected to 'dismissed'/NULL — $14,000 is attorneys' fees under §300aa-15(e)(1), not petitioner compensation. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_09-vv-00221-cl-extra-2651899 Date issued/filed: 2014-01-09 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 2651899 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 09-221V Filed: January 9, 2014 *************************** NOT TO BE PUBLISHED DIKSHA BATISH, * * Special Master * Hamilton-Fieldman * Petitioner, * Petitioner’s Motion for Ruling on the v. * Record; Insufficient Proof of Causation; * Vaccine Act Entitlement; Denial Without SECRETARY OF HEALTH * Hearing. AND HUMAN SERVICES, * * Respondent. * *************************** Thomas Gallagher, Somers Point, NJ, for Petitioner. Alexis Babcock, Washington, DC, for Respondent. DECISION1 On April 14, 2009, Meena Sharma and Sat Dev Batish (“Petitioners”) filed a petition on behalf of their daughter Diksha Batish for compensation under the National Vaccine Injury Compensation Program (“the Program”), 42 U.S.C. §300aa-10, et seq. (2006), 2 alleging that their daughter suffered from acute myopathy as a result of receiving the Tetanus booster and 1 The undersigned intends to post this unpublished 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 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 days within which to file a motion for redaction “of any information furnished by that party (1) that is trade secret or commercial or financial information and is privileged or confidential, or (2) that are medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). In the absence of such motion, the entire decision will be available to the public. Id. 2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2006). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Vaccine Act. Menactra (Meningitis) vaccinations on April 14, 2006. Petition (“Pet.”) at 1, ECF No. 1.3 During the pendency of this case, Diksha Batish reached the age of majority and as such the case was re-captioned listing her as the sole Petitioner. Motion, ECF No. 76; Order, ECF No. 77. The information in the record does not show entitlement to an award under the Program. On January 9, 2014, Petitioner moved for a decision dismissing her petition, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation. To receive compensation under the Program, Petitioner must prove either 1) that Diksha suffered a “Table Injury”-i.e., an injury falling within the Vaccine Injury Table- corresponding to one of Diksha’s vaccinations, or 2) that Diksha 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 Diksha suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that Diksha’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. Accordingly, it is clear from the record in this case that Petitioner has failed to demonstrate either that Diksha suffered a “Table Injury” or that Diksha’s injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. /s/ Lisa D. Hamilton-Fieldman Lisa D. Hamilton-Fieldman Special Master 3 The Petition reflects that Petitioner received a Tetanus booster and Menactra vaccination on April 14, 2006; however, Petitioner’s records from Dr. Gargi Gandhi reflect an administration of “Adacel and Menactra” on April 14, 2006. See Pet’r’s Ex. 1 at 15-16. Adacel is an active booster immunization for the prevention of tetanus, diphtheria, and pertussis. ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_09-vv-00221-3 Date issued/filed: 2016-01-08 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 12/21/2015) regarding 107 DECISION Fees Stipulation/Proffer. Signed by Special Master Lisa Hamilton-Fieldman. (mb) Copy to parties. -------------------------------------------------------------------------------- Case 1:09-vv-00221-UNJ Document 111 Filed 01/08/16 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 09-221V Filed: January 8, 2016 * * * * * * * * * * * * * * * * D.B., * UNPUBLISHED * Petitioner, * Special Master Hamilton-Fieldman * v. * Attorneys’ Fees and Costs; * Reasonable Amount Requested to SECRETARY OF HEALTH * Which Respondent Does Not Object. AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * Diane C. Cooper, Bruce G. Clark & Associates, P.C., for Petitioner. Alexis Babcock, United States Department of Justice, Washington, D.C., for Respondent. DECISION1 On April 14, 2009, D.B. (“Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). On January 9, 2014, the undersigned issued a decision dismissing the petition, and on January 14, 2014, judgment entered on the dismissal. On January 12, 2015, the above captioned-counsel entered her appearance on behalf of Petitioner, and on January 13, 2015, Petitioner filed a motion to vacate the judgment. The undersigned denied Petitioner’s motion on September 4, 2015. On December 21, 2015, the parties filed a Stipulation of Facts Regarding Final Attorneys’ Fees and Costs. Pursuant to their Stipulation, the parties have agreed to an award of $14,000.00 in attorneys’ fees and costs. In accordance with General Order Number 9, the parties represent that Petitioner has not personally incurred any costs during the time that Ms. Cooper has represented her. 1 This decision was originally filed on December 21, 2015. In the reissued decision, Petitioner’s name is, at her request, replaced with her initials; the remainder of the decision is unchanged. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. 1 Case 1:09-vv-00221-UNJ Document 111 Filed 01/08/16 Page 2 of 2 The undersigned finds that the motion to vacate judgment was brought in good faith and that there existed a reasonable basis for filing it. Therefore, an award for fees and costs is appropriate, pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate. Accordingly, the undersigned hereby awards the amount of $14,000.00, in the form of a check made payable jointly to Petitioner and Petitioner’s counsel, Diane C. Cooper, of the law firm of Bruce G. Clark & Associates, P.C. 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.3 IT IS SO ORDERED. s/ Lisa Hamilton-Fieldman Lisa Hamilton-Fieldman Special Master 3 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