VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_10-vv-00668 Package ID: USCOURTS-cofc-1_10-vv-00668 Petitioner: V.R. Filed: 2010-10-04 Decided: 2014-12-15 Vaccine: DTAP Vaccination date: 2009-07-28 Condition: B. pertussis infection which left her in a permanent coma, with brain damage and in an unresponsive state, and would never permit her to develop normally Outcome: dismissed Award amount USD: AI-assisted case summary: On October 4, 2010, Evgeniya Kim, on behalf of her minor child V.R., filed a petition seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that V.R. suffered a B. pertussis infection resulting in a permanent coma, brain damage, and an unresponsive state, preventing normal development, after receiving DTAP, POLIO, HIB, HBV, and PCV7 vaccinations on July 28, 2009. The case was stayed in April 2013 pending the resolution of a criminal case involving V.R.'s father, who was appealing a conviction for second-degree aggravated assault in connection with V.R.'s injuries. Following the affirmation of the conviction on appeal in June 2014, the petitioner requested time to confer with the respondent regarding withdrawal of the case. Subsequently, the petitioner filed a motion to dismiss, stating that an investigation revealed an inability to prove entitlement to compensation under the Vaccine Program. The Special Master's decision noted that the record did not contain evidence of a "Table Injury" or persuasive evidence that the alleged injury was caused by the vaccinations. The decision also indicated that the related criminal action suggested more likely causes for V.R.'s injuries and subsequent death. As there was insufficient evidence to meet the burden of proof, the case was dismissed for insufficient proof on December 15, 2014. Special Master Brian H. Corcoran issued the decision. Petitioner was represented by Edward David of Edward David & Associates, LLC, and Respondent was represented by Ann Martin of the U.S. Department of Justice. A subsequent decision on March 20, 2015, approved a stipulation for attorney's fees and costs. The parties agreed that Petitioner's counsel should receive a lump sum of $25,000.00, payable to both Petitioner and Petitioner's counsel. Special Master Brian H. Corcoran approved this amount as reasonable, and judgment was to be entered accordingly. Theory of causation field: Petitioner alleged that V.R. suffered a B. pertussis infection resulting in a permanent coma, brain damage, and an unresponsive state, preventing normal development, following vaccinations of DTAP, POLIO, HIB, HBV, and PCV7 on July 28, 2009. The public decision does not describe the specific mechanism of injury or name any medical experts. The petitioner filed a motion to dismiss, stating that an investigation demonstrated an inability to prove entitlement to compensation under the Vaccine Program. The Special Master found no evidence of a "Table Injury" and insufficient evidence that the vaccinations caused the alleged injury. The decision noted that a related criminal action suggested more likely causes for V.R.'s injuries and subsequent death. The case was dismissed for insufficient proof on December 15, 2014, by Special Master Brian H. Corcoran. Petitioner's counsel was Edward David, and Respondent's counsel was Ann Martin. A subsequent stipulation for attorney's fees and costs totaling $25,000.00 was approved on March 20, 2015. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_10-vv-00668-0 Date issued/filed: 2014-12-15 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 11/24/2014) regarding 71 DECISION of Special Master ( Signed by Special Master Brian H. Corcoran.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:10-vv-00668-UNJ Document 72 Filed 12/15/14 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 10-668 (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * V.R, by her mother * Filed: November 24, 2014 EVGENIYA KIM, * * Petitioner, * Petitioner’s Motion for a Decision v. * Dismissing the Petition; Vaccine Act * Entitlement; Denial Without Hearing SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Edward David, Edward David & Associates, LLC, Roseland, NJ, for Petitioner. Ann Martin, U.S. Dep’t of Justice, Washington, D.C., for Respondent. DECISION DISMISSING CASE1 On October 4, 2010, Evgeniya Kim filed a petition on behalf of V.R., her minor child, seeking compensation under the National Vaccine Injury Compensation Program (the “Program”).2 Petitioner alleged that V.R. suffered from B. pertussis infection which left her in a permanent coma, with brain damage and in an unresponsive state, and would never permit her to develop normally as a result of receiving the DTAP, POLIO, HIB, HBV, and PCV7 vaccinations on July 28, 2009. 1 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, 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 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that 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 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.A. ' 300aa-10 – 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act. Case 1:10-vv-00668-UNJ Document 72 Filed 12/15/14 Page 2 of 2 During a status conference in this case that was held on September 23, 2014, the parties discussed the Petitioner’s potential difficulty in proceeding further with this case. Order (ECF No. 69). The matter was stayed in April 2013 pending resolution of a criminal case involving V.R.’s father (Evgeniya Kim’s spouse) who was appealing his conviction, following a guilty plea, for second-degree aggravated assault in connection with V.R.’s injuries. In light of the recent disposition of that appeal (on June 10, 2014), affirming the conviction and remanding the case for resentencing, Petitioner requested some time to confer with Respondent in deciding whether she would withdraw her case. Order (ECF No. 69). She has now done so. Motion for a Decision Dismissing Petition (ECF No. 70). The motion indicates that “[a]n investigation of the facts and science supporting her case has demonstrated to [P]etitioner that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. at 1. That motion also indicated that Respondent was notified it in advance of filing and expressed no opposition to the motion. Id. at 1-2. To receive compensation under the Program, a petitioner must prove either (1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused by a vaccine. See §§13(a)(1)(A) and 11(c)(1). An examination of the record, however, does not uncover any evidence that V.R. suffered a “Table Injury.” Further, the record does not contain any persuasive evidence establishing that the alleged injury that V.R. experienced could have been caused by the vaccinations received, and the related criminal action suggests more likely causes for V.R.’s injuries and subsequent death. Under the Vaccine Act, a petitioner may not receive a Program award based solely on his 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, there is insufficient evidence in the record for Petitioner to meet her burden of proof. Petitioner’s claim therefore cannot succeed and must be dismissed. §11(c)(1)(A). Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_10-vv-00668-1 Date issued/filed: 2015-03-20 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 2/24/2015) regarding 75 DECISION Fees Stipulation Signed by Special Master Brian H. Corcoran. (ag) Copy to parties. -------------------------------------------------------------------------------- Case 1:10-vv-00668-UNJ Document 78 Filed 03/20/15 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 10-668V (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * V.R., by her mother * EVGENIYA KIM, * * Filed: February 24, 2015 Petitioner, * * Decision by Stipulation; Attorney’s v. * Fees & Costs * SECRETARY OF HEALTH AND * HUMAN SERVICES , * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Edward David, Roseland, NJ, for Petitioner Ann Martin, Washington, DC, for Respondent ATTORNEY’S FEES AND COSTS DECISION1 On October 4, 2010, Evgeniya Kim filed a petition on behalf of V.R. seeking compensation under the National Vaccine Injury Compensation Program (Athe Vaccine Program@). On November 24, 2014, Petitioner filed a Motion for a Decision Dismissing the Petition, which I subsequently granted. On February 24, 2015, counsel for both parties filed a joint stipulation for attorney’s fees and costs. The parties have stipulated that Petitioner’s counsel should receive a lump sum of $25,000.00, in the form of a check payable to Petitioner and Petitioner’s counsel. This amount 1 Because this decision contains a reasoned explanation for my action in this case, I will 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, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s inclusion of certain kinds of confidential information. Specifically, under 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 whole decision will be available to the public. (Id.) Case 1:10-vv-00668-UNJ Document 78 Filed 03/20/15 Page 2 of 2 represents a sum to which respondent does not object. In addition, and in compliance with General Order #9, Petitioner has represented that she did incur any reimbursable costs in proceeding on this petition. I approve the requested amount for attorney’s fees and costs as reasonable. Accordingly, an award should be made in the form of a check in the amount of $25,000 payable jointly to Petitioner and Petitioner’s counsel, Edward David, Esq. 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.2 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.