M.D. v. HHS - DTaP, epilepsy (2021)

On September 10, 2010, M.D., a minor, by his mother and next friend Rosemary Dilascio, filed a petition seeking compensation under the National Childhood Vaccine Injury Compensation Program for injuries allegedly sustained following a diphtheria-tetanus-acellular pertussis (DTaP) vaccination received on April 24, 2006. The petition alleged both an on-Table and an off-Table claim.

The on-Table claim asserted that M.D. suffered an encephalopathy within 72 hours of vaccination. The public decision does not describe M.D.'s age at the time of vaccination, but notes he was approximately five years old.

The petitioner's counsel was Corey B. Kaye, and the respondent was represented by Glenn A.

MacLeod and later Colleen Clemons Hartley. Special Master Christian J.

Moran issued the initial decision on April 26, 2017, which was reissued for public availability on August 22, 2017. The Special Master denied compensation, finding that M.D.'s first seizure occurred seven days after vaccination, outside the 72-hour window for encephalopathy under the Vaccine Injury Table.

For the off-Table claim, the petitioner was required to prove causation-in-fact. The Special Master found that the petitioner's expert, Dr.

Robert Gould, provided an unpersuasive opinion lacking a detailed theory of causation and a defined temporal limit for onset. The medical records did not support the claim, and the VAERS report was inconclusive.

The Special Master denied compensation, finding no persuasive connection between the DTaP vaccine and M.D.'s seizure disorder. A subsequent motion for relief from judgment was filed by Ms.

Dilascio, alleging her attorney, Corey B. Kaye, had abandoned her.

Mr. Kaye had been disbarred for professional misconduct, including conversion of client funds.

The Special Master denied the motion for relief from judgment on December 17, 2020, finding that while Mr. Kaye's representation was deficient, it did not constitute abandonment, and that Ms.

Dilascio had not been diligent in pursuing her case. Judge Richard A.

Hertling reviewed the Special Master's decision on April 27, 2021, and denied the petition for review, sustaining the Special Master's denial of the motion for relief from judgment. The court found that the Special Master's decision was not arbitrary, capricious, or an abuse of discretion.

No award amount was granted.