Dan Liu v. HHS - Menactra, death (2018)

On January 27, 2010, Shingshan Liu and Sue Wang Liu, as Personal Representatives of the Estate of Dan Liu, Deceased, filed a petition alleging that the Menactra vaccine administered to their 16-year-old son, Dan Liu, on May 30, 2008, caused an adverse reaction leading to his death on June 22, 2008. The respondent was the Secretary of Health and Human Services.

Pre-vaccination medical records indicated Dan had a history of depression, sleep issues, and mild obstructive sleep apnea, for which he was being treated. An autopsy report concluded Dan died from cardiac arrhythmia of undetermined etiology.

The petitioners' initial expert, Dr. Douglas Miller, a neuropathologist, reviewed the autopsy and additional tissue samples.

He concluded that the cause of death was brain swelling with brainstem compression from an unknown catastrophic cause, leading to neurogenic pulmonary edema and subendocardial ischemia. He found mild lymphocytic meningitis but stated it was unlikely to have caused the severe brain swelling, opining that it was a coincidence.

Dr. Miller stated he had no good answer for the cause of the cerebral edema and suggested Dan might have bumped his head.

He also concluded that the Menactra vaccine, which targets bacterial meningitis, could not have caused Dan's death. Petitioners subsequently filed reports from other experts, including Dr.

Yehuda Shoenfeld (immunologist), Dr. Robert Waugh (cardiologist), Dr.

M. Eric Gershwin (immunologist), and Dr.

Frederick Yturralde (cardiologist). These reports presented inconsistent theories, such as eosinophilic myocarditis and fulminant myocarditis, and struggled to establish a causal link to the vaccine.

Dr. Shoenfeld's report was stricken.

Dr. Waugh initially theorized vaccine-caused inflammation of the heart muscle, but later became ill.

Dr. Yturralde described a different heart issue and deferred to the immunologist for a vaccine connection.

Dr. Gershwin's reports were inconsistent regarding the type of myocarditis and its link to the vaccine.

Due to the persistent lack of a viable theory of causation supported by expert opinion, the petitioners filed a motion to dismiss their own petition on July 19, 2018, stating they were unable to prove entitlement to compensation. Special Master Laura D.

Millman granted this motion, dismissing the case. The decision noted that petitioners should have moved to dismiss after filing Dr.

Miller's initial report, as that was when a reasonable basis to proceed ended. The case was later reviewed regarding attorneys' fees.

Judge Thomas C. Wheeler reviewed the Special Master's decision on attorneys' fees, finding that the Special Master applied too burdensome a standard in evaluating the reasonable basis for the petitioners' continued pursuit of the claim.

The court vacated the Special Master's fee decision and remanded the case for reconsideration of attorneys' fees and costs, stating that the Special Master overstated the strength of Dr. Miller's reports and impermissibly weighed the evidence on the merits rather than assessing feasibility.