Jeremy Hodge v. HHS - Hepatitis B, significant aggravation of preexisting neuroborreliosis (2023)

Jeremy Hodge, born in 1987, filed a petition on July 15, 2009, through counsel Clifford Shoemaker, who filed the petition within 48 hours of being contacted by Mr. Hodge's mother and conservator, Erika Elson.

The petition acknowledged a potential statute of limitations issue. Mr.

Hodge alleged that hepatitis A and hepatitis B vaccinations administered on March 17, 2006, and a second hepatitis B dose on April 25, 2006, had caused or significantly aggravated his neurological condition. Mr.

Hodge's background was complex. Around 2003, he was bitten by a tick and subsequently developed progressive fatigue, headaches, obsessive-compulsive disorder, and cognitive disturbances.

By September 2004, his OCD symptoms were documented. He dropped out of school in the eleventh grade due to his symptoms, had never been employed, and was largely dependent on his mother.

By 2007, evaluators identified possible nonspecified psychosis in addition to OCD, and he was described as unable to make a cogent medical history at emergency room visits. On the night of March 17, 2006, after his first hepatitis B vaccination, he experienced hot flashes, chills, and stabbing pains.

On June 2, 2006, he was evaluated at Valley Presbyterian Hospital for dizziness, eye movement disturbances, balance issues, fatigue, and pain; his discharge diagnoses included dizziness and arthralgias-myalgias status post hepatitis vaccination. He did not obtain an MRI until February 2009, which revealed white matter hyperintensities consistent with possible demyelinating disease.

The first phase of the case addressed the statute of limitations. Special Master Moran dismissed the petition on March 23, 2015, finding the claim untimely because the first symptoms appeared on June 2, 2006, more than 36 months before the July 15, 2009 filing.

He rejected equitable tolling, characterizing petitioner's condition as OCD. The Court of Federal Claims, Judge Sweeney, vacated and remanded in September 2015, finding that the special master had substantially mischaracterized and minimized the medical records documenting the severity of petitioner's mental illness — including repeated diagnoses of nonspecified psychosis, possible schizoaffective disorder, inability to function independently, and near-total dependence on his mother.

On remand, Special Master Moran issued a ruling on December 21, 2015, applying a stop-clock approach to equitable tolling and finding that Mr. Hodge was incapable of managing his own affairs from July 2007 through September 2008, a period sufficient to render the filing timely.

The special master also directed the parties to brief whether the California Probate Court should appoint a guardian or conservator for Mr. Hodge, recognizing that any compensation would likely require a court-appointed representative to receive funds.

In subsequent proceedings, Erika Elson was appointed conservator by the California Probate Court, and Renée Gentry of the Vaccine Injury Clinic at George Washington University Law School substituted as counsel. Petitioner's theory was reformulated as a significant aggravation claim under the Loving test: a tick bite in approximately 2003 caused Lyme disease, which progressed to neuroborreliosis, which in turn caused OCD; the hepatitis B vaccinations in 2006 then significantly aggravated the underlying neuroborreliosis.

Petitioner's expert, Dr. Carlo Tornatore, opined that neuroborreliosis was a plausible diagnosis and that the vaccine may have aggravated the underlying autoimmune demyelinating disorder.

An entitlement hearing was held on June 14-15, 2021, after years of record-gathering efforts were hampered by the absence of contemporaneous medical records from the critical 2003-2006 period. Special Master Moran denied entitlement on September 12, 2022.

He identified two overarching problems: (1) the absence of medical records during the critical timeframes, and (2) the inconsistency of Ms. Elson's testimony, which she had provided many years after the relevant events.

The primary failure was that petitioner had not established by preponderant evidence the predicate factual assumption underlying Dr. Tornatore's opinion — that Mr.

Hodge had contracted Lyme disease before his 2006 vaccinations. The evidence supported a Lyme disease diagnosis only from 2009.

Without that predicate, the expert's theory was built on an unestablished foundation, requiring denial under Burns v. Secretary of HHS, 3 F.3d 415 (Fed.

Cir. 1993). The Court of Federal Claims, Judge Sweeney, granted the motion for review in March 2023, setting aside the special master's finding that Mr.

Hodge had not contracted Lyme disease in 2003, and finding affirmatively that tick exposures and Lyme disease predated Mr. Hodge's OCD symptoms.

The court remanded for ninety days for reconsideration of entitlement. On the second remand, Special Master Moran again denied entitlement, finding that petitioner failed to establish a medical theory for how the hepatitis B vaccine can significantly aggravate neuroborreliosis (Loving prong 4) and failed to show a logical sequence of cause and effect (Loving prong 5).

The Court of Federal Claims denied the motion for review on October 12, 2023, sustaining the special master's decision and finding that the correct legal standard had been applied throughout.