VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_12-vv-00099 Package ID: USCOURTS-cofc-1_12-vv-00099 Petitioner: E.M.R. Filed: 2015-01-16 Decided: 2015-02-10 Vaccine: MMR Vaccination date: 2009-02-11 Condition: Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) Outcome: dismissed Award amount USD: AI-assisted case summary: Katie Roberts, as parent and guardian of her minor daughter E.M.R., filed a petition on January 16, 2015, alleging that E.M.R. developed Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) months after receiving the Measles-Mumps-Rubella (MMR) vaccination on February 11, 2009. The respondent, the Secretary of Health and Human Services, argued that there was minimal, scientifically unreliable evidence linking the vaccination to CIDP, that the timeframe between vaccination and symptom onset was not medically acceptable, and that the petitioner failed to establish a theory for how the MMR vaccine could cause CIDP. The petitioner moved for a decision on the record after failing to file an expert report by the court-ordered deadline. The Special Master found insufficient evidence in the record to support the claim that E.M.R. suffered a Table Injury or that her alleged injuries were vaccine-caused. The case was dismissed for insufficient proof on February 10, 2015. Subsequently, on August 24, 2015, the parties stipulated to attorney's fees and costs in the amount of $33,364.54, which Special Master Brian H. Corcoran approved. Theory of causation field: Petitioner Katie Roberts, on behalf of minor E.M.R., alleged that E.M.R. developed Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) months after receiving the Measles-Mumps-Rubella (MMR) vaccine on February 11, 2009. The respondent contended that there was minimal, scientifically unreliable evidence linking the vaccination to CIDP, that the timeframe between vaccination and symptom onset was not medically acceptable, and that the petitioner failed to establish a theory for how the MMR vaccine could cause CIDP. Petitioner moved for a decision on the record after failing to file an expert report by the court-ordered deadline. Special Master Brian H. Corcoran found insufficient evidence in the record to support the claim that E.M.R. suffered a Table Injury or that her alleged injuries were vaccine-caused, and that the record did not contain a medical expert's opinion or other persuasive evidence supporting the conclusion that E.M.R.'s alleged injuries were vaccine-caused, nor did it support the conclusion that the onset of CIDP symptoms occurred in a medically acceptable timeframe after the MMR vaccine. The case was dismissed for insufficient proof on February 10, 2015. On August 24, 2015, Special Master Corcoran approved a stipulation for attorney's fees and costs in the amount of $33,364.54. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_12-vv-00099-0 Date issued/filed: 2015-02-10 Pages: 3 Docket text: PUBLIC DECISION (Originally filed: 01/16/2015) regarding 55 DECISION of Special Master Signed by Special Master Brian H. Corcoran. (ag) Copy to parties. -------------------------------------------------------------------------------- Case 1:12-vv-00099-UNJ Document 56 Filed 02/10/15 Page 1 of 3 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-99V (Not to be Published) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * KATIE ROBERTS, as Parent and Guardian of * her Daughter, E.M.R., * Filed: January 16, 2015 * Petitioner, * * Special Master Corcoran v. * * SECRETARY OF HEALTH AND * HUMAN SERVICES , * Motion for Decision on the * Record; Insufficient Proof of Respondent. * Causation; Denial of * Entitlement * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Diana Sedar, Maglio Christopher & Toale, Sarasota, FL, for Petitioner Justine Daigneult, U.S. Department of Justice, Washington, DC, for Respondent DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1 On February 12, 2012, Katie Roberts, on behalf of her minor child, EMR, filed a petition in the National Vaccine Injury Compensation Program2 alleging that EMR developed Chronic 1 Because this decision contains a reasoned explanation for my actions in this case, I will post it 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 published 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.) 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.A. ' 300aa-10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa. 1 Case 1:12-vv-00099-UNJ Document 56 Filed 02/10/15 Page 2 of 3 Inflammatory Demyelinating Polyneuropathy (“CIDP”) months after receiving the Measles- Mumps-Rubella vaccination (“MMR”) on February 11, 2009. See Petition at 1 (ECF No. 1). After gathering and then filing the relevant medical records, Petitioner filed a Statement of Completion on January 25, 2013. (ECF No. 27). Respondent subsequently identified additional records she believed were relevant to the claim and necessary to gauge its sufficiency prompting Petitioner to file such materials along with a second Statement of Completion on June 6, 2014. (ECF No. 48). Respondent filed her Rule 4(c) Report on August 8, 2014. (ECF No. 50). In it, she asserted that an award of compensation was not appropriate in this matter. Among other things, Respondent contended that (a) there was minimal, scientifically-unreliable evidence in EMR’s treatment history linking her vaccination to her CIDP, (b) Petitioner could not show a medically- acceptable timeframe between onset of CIDP and vaccination, since the record contained a variety of evidence of symptoms running from the time before vaccination to eight or nine months after, and (c) Petitioner lacked sufficient evidence establishing a theory for how the MMR vaccine could cause CIDP. ECF No. 50 at 19-20. After the filing of the Rule 4 Report, the parties participated in a status conference on September 17, 2014, at which time a deadline of November 26, 2014 was set for the filing of Petitioner’s expert report. (ECF No. 51). Petitioner subsequently requested an extension of that deadline to December 26, 2014 (ECF No. 52) which I permitted. Instead of filing an expert report, however, Ms. Roberts filed a motion on December 12, 2014 (ECF No. 53) seeking a decision on the record under Vaccine Rule 8(d). Respondent filed a pleading in response (ECF No. 54). Petitioner did not file a reply, and the matter is now ripe for resolution. To receive compensation under the Program, Ms. Roberts must prove either 1) that EMR suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of her vaccinations, or 2) that she 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, did not uncover any evidence that EMR suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence supporting the conclusion that EMR’s alleged injuries were vaccine-caused. Petitioner has in particular failed to offer expert or other scientific or medical testimony that the MMR vaccine could cause CIDP. And the record evidence does not support the conclusion that the onset of EMR’s CIDP symptoms occurred in a medically- acceptable timeframe after she received the MMR vaccine. Under the Vaccine Act, a petitioner may not be given 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 2 Case 1:12-vv-00099-UNJ Document 56 Filed 02/10/15 Page 3 of 3 record for Ms. Roberts 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 3 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_12-vv-00099-1 Date issued/filed: 2015-08-24 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 8/3/2015) regarding 59 DECISION Fees Stipulation. Signed by Special Master Brian H. Corcoran. (ag) Copy to parties. -------------------------------------------------------------------------------- Case 1:12-vv-00099-UNJ Document 63 Filed 08/24/15 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-99V (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * KATIE ROBERTS, as parent and guardian of her * daughter, E.M.R., * * Filed: August 3, 2015 Petitioner, * * Decision by Stipulation; Attorney’s v. * Fees & Costs * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Diana L. Stadelnikas Sedar, Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner Justine Walters, U.S. Dep’t of Justice, Washington, DC, for Respondent ATTORNEY’S FEES AND COSTS DECISION1 On February 10, 2012, Katie Roberts filed a petition as parent and guardian of her daughter, E.M.R., seeking compensation under the National Vaccine Injury Compensation Program. On December 12, 2014, Petitioner moved for a Decision on the Record. I issued a decision dismissing the case for insufficient proof on January 16, 2015. On July 31, 2015, counsel for both parties filed a joint stipulation, in regards to attorney’s fees and costs. The parties have stipulated that Petitioner’s counsel should receive a lump sum of $33,364.54, 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 actions in this case, I will post it 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 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa- 12(d)(4)(B), however, the parties may object to the published decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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 1:12-vv-00099-UNJ Document 63 Filed 08/24/15 Page 2 of 2 represents a sum to which Respondent does not object. In addition, and in compliance with General Order No. 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 $33,364.54 payable jointly to Petitioner and Petitioner’s counsel, Diana L. Stadelnikas Sedar, 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.