VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_11-vv-00771
Package ID: USCOURTS-cofc-1_11-vv-00771
Petitioner: Brian Barkas
Filed: 2011-11-15
Decided: 2015-02-11
Vaccine: influenza
Vaccination date: 2010-08-31
Condition: transverse myelitis
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Brian Barkas filed a petition on November 15, 2011, alleging that an influenza vaccination he received on August 31, 2010 caused him to develop transverse myelitis. Brian Barkas died intestate with no assets after the petition was filed; his wife, Donna Barkas, was substituted as petitioner in July 2014.

On July 18, 2014, petitioner moved for a final decision on the record, acknowledging that no expert report would be filed in this case. Special Master Hamilton-Fieldman dismissed the petition for insufficient proof. The record contained insufficient medical records supporting petitioner's claim and no competent medical opinion in support; under the Vaccine Act, a claim may not rest solely on petitioner's claims but must be supported by either medical records or a physician's opinion. The special master found no Table injury and no persuasive causation-in-fact evidence.

On January 20, 2015, the parties filed a stipulation for attorneys' fees and costs. The special master found that the petition had been brought in good faith and that there had existed a reasonable basis for the claim, and accordingly awarded $45,000.00 in fees and costs under 42 U.S.C. § 300aa-15(b) and (e)(1), payable jointly to petitioner and counsel, F. John Caldwell Jr. of Maglio, Christopher & Toale, PA. Petitioner had not personally incurred any expenses.

Theory of causation field:
Flu Aug 31, 2010 → alleged TM. DISMISSED. Petitioner Brian Barkas died; Donna Barkas substituted. Moved for final decision on record; no expert, insufficient medical records. SM Hamilton-Fieldman dismissed July 18, 2014 (§ 13(a)(1): no medical records or physician opinion). Fees $45,000 under § 300aa-15(b)+(e)(1) (good faith/reasonable basis; non-prevailing petitioner).

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_11-vv-00771-0
Date issued/filed: 2014-08-08
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 07/18/2014) regarding 44 DECISION of Special Master Signed by Special Master Lisa Hamilton-Fieldman. (dlb) Copy to parties.
--------------------------------------------------------------------------------
Case 1:11-vv-00771-UNJ Document 47 Filed 08/08/14 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-771V
Filed: July 18, 2014
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED
DONNA BARKAS, as Personal Representative of *
the Estate of BRIAN BARKAS, deceased, *
* Special Master
* Hamilton-Fieldman
*
Petitioner, * Petitioner’s Motion to Dismiss Petition;
v. * Insufficient Proof of Causation; Vaccine Act
* Entitlement; Denial Without Hearing.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
F. John Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for Petitioner.
Melonie J. McCall, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On November 15, 2011, Brian Barkas filed a petition for compensation under the
National Vaccine Injury Compensation Program (“the Program”), 42 U.S.C. §300aa-10, et seq.
(2006), 2 alleging that he suffered from transverse myelitis as a result of receiving the influenza
vaccination on August 31, 2010. Petition (“Pet.”) at 2, ECF No. 1. The information in the
record does not show entitlement to an award under the Program.
1 The undersigned intends to post this unpublished 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 Vaccine Rule 18(b), each party has 14 days within which to file a motion for
redaction “of any information furnished by that party (1) that is trade secret or commercial or
financial information and is privileged or confidential, or (2) that are medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” In the
absence of such motion, the entire 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. §§ 300aa-10 et seq. (2006).
1

Case 1:11-vv-00771-UNJ Document 47 Filed 08/08/14 Page 2 of 2
On July 17, 2014, the undersigned granted Petitioner’s Motion to Recaption Case since
Petitioner had passed away intestate and with no assets. Petitioner’s spouse was therefore
substituted as Petitioner in this case. Motion, ECF No. 41; Order, ECF No. 42. On July 18,
2014, Petitioner moved for a Final Decision on the Record, acknowledging that an expert report
would not be filed in this case.
To receive compensation under the Program, Petitioner must prove either 1) that the
injured party suffered a “Table Injury”-i.e., an injury falling within the Vaccine Injury Table-
corresponding to vaccination, or 2) that the injured party suffered an injury that was actually
caused by a vaccine. See §§ 13 (a)(1)(A) and 11(c)(1). An examination of the record did not
uncover any evidence that Brian Barkas suffered a “Table Injury.” Further, the record does not
contain persuasive evidence indicating that Mr. Barkas’s alleged injury was 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. § 13(a)(1). In this case, because there are insufficient
medical records supporting 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 Mr. Barkas suffered a “Table Injury” or that Mr. Barkas’s 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/ Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
2

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_11-vv-00771-1
Date issued/filed: 2015-02-11
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 1/20/2015) regarding 50 DECISION Fees Stipulation/Proffer. Signed by Special Master Lisa Hamilton-Fieldman. (mb) Copy to parties.
--------------------------------------------------------------------------------
Case 1:11-vv-00771-UNJ Document 53 Filed 02/11/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-771V
Filed: January 20, 2015
* * * * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED
DONNA BARKAS, as Personal *
Representative of the Estate of * Special Master Lisa Hamilton-Fieldman
BRIAN BARKAS, deceased, *
*
Petitioner, * Attorneys’ Fees and Costs; Reasonable Amount
v. * Requested to which Respondent Does Not
* Object.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * * * *
F. John Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for Petitioner.
Darryl Wishard, United States Department of Justice, Washington, DC, for Respondent.
DECISION1
On November 15, 2011, Brian Barkas2 filed a petition for compensation under the National
Vaccine Injury Compensation Program (“the Program”), 42 U.S.C. §300aa-10, et seq. (2006), 3 alleging
that he suffered from transverse myelitis as a result of receiving an influenza vaccination on August 31,
2010. On July 18, 2014, the undersigned issued a decision dismissing the case.
On January 20, 2015, the parties filed a stipulation of fact concerning attorneys’ fees and costs.
The parties have agreed to an award of $45,000.00 for attorneys’ fees and costs. In accordance with
General Order Number 9, Petitioner represents that she has not personally incurred any expenses in
pursuit of her claim.
1 The undersigned intends to post this unpublished 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 Vaccine Rule
18(b), each party has 14 days within which to file a motion for redaction “of any information furnished by
that party (1) that is trade secret or commercial or financial information and is privileged or confidential,
or (2) that are medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” In the absence of such motion, the entire decision will be available to
the public. Id.
2 Brian Barkas passed away after the petition was filed. See Order, filed July 17, 2014. Donna
Barkas, his wife, was substituted as Petitioner. Id.
3 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. §§ 300aa-10 et seq. (2006).
1

Case 1:11-vv-00771-UNJ Document 53 Filed 02/11/15 Page 2 of 2
The undersigned finds that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate, pursuant to 42
U.S.C. § 300aa-15(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate.
Accordingly, the undersigned hereby awards the amount of $45,000.00, in the form of a check made
payable jointly to Petitioner and Petitioner’s counsel, F. John Caldwell, Jr., of the law firm of
Maglio, Christopher & Toale, PA.
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.4
IT IS SO ORDERED.
/s/ Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2