VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_11-vv-00628 Package ID: USCOURTS-cofc-1_11-vv-00628 Petitioner: LMH Filed: 2011-09-29 Decided: 2014-03-14 Vaccine: DTaP Vaccination date: 2009-06-16 Condition: encephalopathy and sequela Outcome: dismissed Award amount USD: AI-assisted case summary: Holly Helms, on behalf of her minor child LMH, filed a petition on September 29, 2011, alleging that LMH developed encephalopathy and sequela as a result of a Diptheria, Tetanus, Pertussis (DTaP) vaccination received on June 16, 2009. The respondent was the Secretary of Health and Human Services. The Special Master, Nora Beth Dorsey, determined that the petitioner was not entitled to compensation due to insufficient proof and dismissed the case. A decision to this effect was filed on October 15, 2013. Subsequently, on March 13, 2014, the parties filed a stipulation regarding attorneys' fees and costs. Petitioner's counsel, Aaron R. Dias of Richardson, Patrick, Westbrook & Brickman, LLC, and respondent's counsel, Alexis Babcock of the U.S. Department of Justice, agreed that petitioner's counsel was entitled to $16,882.02 in attorneys' fees and costs. Special Master Dorsey granted this request, ordering a lump sum payment of $16,882.02, jointly payable to LMH and her attorney. The case was dismissed without an award for the alleged injury. The public decision does not describe the specific onset of symptoms, medical tests performed, treatments received, or the specific mechanism of injury. Theory of causation field: Petitioner alleged that LMH developed encephalopathy and sequela as a result of a DTaP vaccination received on June 16, 2009. The Special Master dismissed the case for insufficient proof. The public decision does not detail the specific theory of causation, medical experts, or evidence presented regarding the mechanism of injury. The case resulted in a dismissal without an award for the alleged injury. Attorneys' fees and costs in the amount of $16,882.02 were awarded to petitioner's counsel, Aaron R. Dias, via a stipulation approved by Special Master Nora Beth Dorsey on March 14, 2014. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_11-vv-00628-cl-extra-2642076 Date issued/filed: 2013-10-15 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 2642076 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 11-628V Filed: October 15, 2013 ************************************* UNPUBLISHED HOLLY HELMS, on behalf of her minor * child, LAYLA MICHELLE HELMS, * Special Master Dorsey * Petitioner, * * Petitioner’s Motion for a Decision v. * Dismissing the Petition; Insufficient Proof * of Causation; Vaccine Act Entitlement; SECRETARY OF HEALTH * Denial Without a Hearing; Table Injury; AND HUMAN SERVICES, * DTaP; encephalopathy. * Respondent. * * ************************************* Aaron Russell Dias, RPWB, LLC, Mt. Pleasant, SC, counsel for petitioner. Alexis B. Babcock, U.S. Department of Justice, Washington, DC, counsel for respondent. DECISION1 On September 29, 2011, petitioner filed a petition seeking compensation in the National Vaccine Injury Compensation Program (“the Program”) on behalf of her daughter, Layla Michelle Helms (“Layla”). Petitioner alleged that Layla suffered a Table encephalopathy as a result of a diphtheria, tetanus, pertussis (DTaP) vaccination she received on June 16, 2009. Petition at 1-2. On September 24, 2012, respondent filed a report pursuant to Vaccine Rule 4(c) stating that Layla did not meet the requirements for a Table encephalopathy and thus petitioner could not prevail without a medical opinion or theory supporting her allegation or establishing a logical cause and effect relationship between the DTaP vaccine and Layla’s injuries. Respondent’s Rule 4 report at 14 – 15. Upon review of the information in the record, the undersigned finds that petitioner is not entitled to an award under the Program. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to 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)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted from public access. 1 On October 15, 2013, petitioner filed a Motion for a Decision dismissing her petition. Petitioner asserts in her Motion that an investigation of the facts and science supporting her case has demonstrated that, at this time, she will be unable to demonstrate entitlement to compensation in the Program. See Pet’r’s Motion at 1. Accordingly, petitioner requests that the undersigned dismiss her petition. Id. Respondent has no objection to petitioner’s motion.2 To receive compensation under the Program, a petitioner must prove either 1) that Layla suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of her vaccinations, or 2) that Lalyla suffered an injury that was actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover preponderant evidence that Layla suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that Layla’s alleged injuries were vaccine-caused. Under the Act, a petitioner may not be given a Program award based solely on the petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical records that have been filed do not support petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion. Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate either that Layla suffered a “Table Injury” or that her injuries were “actually caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 2 See ECF Docket entry entered on 10/15/2013 (Informal Remark from respondent’s counsel). 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_11-vv-00628-0 Date issued/filed: 2014-04-04 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 3/14/2014) regarding 39 DECISION Fees Stipulation/Proffer Signed by Special Master Nora Beth Dorsey. (tlj) Copy to parties. -------------------------------------------------------------------------------- Case 1:11-vv-00628-UNJ Document 40 Filed 04/04/14 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 11-628V March 14, 2014 * * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED HOLLY HELMS, on behalf of * her minor child, LMH, * Special Master Dorsey * Petitioner, * * Diptheria, Tetanus, Pertussis v. * Vaccination (DTaP); * Encephalopathy; Attorneys’ Fees; * Reasonable Amount Requested to SECRETARY OF HEALTH * Which Respondent Does Not Object. AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * Aaron R. Dias, Richardson, Patrick, Westbrook & Brickman, LLC, Mount Pleasant, SC, for petitioner. Alexis Babcock, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On September 29, 2011, Holly Helms (“petitioner”), on behalf of her minor child LMH, filed a petition for compensation under the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner alleged that as a result of receiving a Diptheria, Tetanus, Pertussis (DTaP) vaccination on June 16, 2009, LMH developed an encephalopathy and 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling 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 (2012)). As provided by 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). 2 The National Vaccine Injury Compensation Program is set forth in 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. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. Case 1:11-vv-00628-UNJ Document 40 Filed 04/04/14 Page 2 of 2 sequela. The undersigned determined that petitioner was not entitled to compensation and dismissed the case for insufficient proof. Decision, filed October 15, 2013, at 1-2. On March 13, 2014, the parties filed a stipulation of facts concerning attorneys’ fees and costs. In it, the parties stipulate that petitioner’s counsel is entitled to be reimbursed for $16,882.02 in attorneys’ fees and costs. In accordance with General Order #9, petitioner’s counsel represents that petitioner has incurred no out-of-pocket expenses in pursuing her petition. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). Based on the reasonableness of the parties’ stipulation, the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs. Accordingly, an award should be made as follows: A lump sum of $16,882.02, in the form of a check jointly payable to petitioner and to Mr. Aaron R. Dias of the law firm of Richardson, Patrick, Westbrook & Brickman, LLC. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT herewith.3 IT IS SO ORDERED. s/ Nora Beth Dorsey Nora Beth Dorsey Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.