B.R. v. HHS - Tdap, Streptococcus pyogenes infection leading to sepsis and death (2023)

On April 4, 2011, Stephanie Roscoe, as representative of the estate of B.R., filed a petition under the National Vaccine Injury Compensation Program. B.R., an 11-year-old, received four vaccines—Hepatitis A, Tdap, Menactra, and HPV—on March 31, 2009.

Petitioner alleged that these vaccinations led to fever, pain, confusion, and ultimately death from Streptococcus pyogenes infection, sepsis, and necrotizing fasciitis. The respondent, the Secretary of Health and Human Services, argued against compensation.

The case involved extensive litigation, including a prior civil action for medical negligence. After a ruling on entitlement, the Special Master found that the petitioner had provided preponderant evidence that one or more of the vaccines caused B.R.'s infection and death, satisfying the Althen standard for causation.

The Special Master's decision was issued on June 8, 2020. Subsequently, a decision on damages was issued on November 14, 2022 (refiled in redacted form January 23, 2023).

The Special Master awarded $250,000 for pain and suffering and $250,000 for the death benefit, totaling $500,000. A key issue was whether this award was subject to a set-off from a prior civil settlement.

The Special Master ruled that the award was not subject to a set-off because there was insufficient evidence that the settlement proceeds were paid under an insurance policy, as required by the Vaccine Act. The respondent appealed this decision regarding the set-off.

On March 6, 2023, the Court denied the respondent's motion for review, affirming the Special Master's findings on both the allocation of the burden of proof for the set-off and the lack of evidence that the settlement was paid under an insurance policy. Petitioner's counsel was Richard Gage, and respondent's counsel was Kyle Edward Pozza.

Special Master Nora Beth Dorsey presided over the entitlement and damages rulings, and Senior Judge Edward J. Damich reviewed the set-off decision.