Dagim Yilak v. HHS - DTaP, encephalopathy; seizure disorder; infantile spasms with intractable epilepsy; hypertonia; and developmental delays (2015)
Case summary [AI summaries can sometimes make mistakes]
On July 1, 2014, Sinidu Robi and Yilak Kebebew, as legal representatives for a minor child, Dagim Yilak, filed a petition for compensation under the National Childhood Vaccine Injury Compensation Program. They alleged that Dagim received the combined diphtheria-tetanus-acellular pertussis/haemophilus influenzae type B/inactivated polio (DTaP-HIB-IPV), hepatitis B, Prevnar pneumococcal 7-valent conjugate, and rotavirus vaccines on June 18, 2009.
The petition proposed that these vaccines caused an "on-Table" encephalopathy, or alternatively, caused other injuries including seizures, infantile spasms with intractable epilepsy, hypertonia, and developmental delays. The respondent argued that the petitioners failed to prove an "on-Table" injury due to a lack of contemporaneous medical records supporting onset within the Vaccine Injury Table's timeframe.
The respondent also contended that the petitioners failed to establish a medical theory causally connecting the vaccines to the alleged "off-Table" injuries. A factual hearing was held, and findings of fact issued on April 4, 2014, determined that Dagim's excessive eye blinking, identified as an onset symptom, began on August 10, 2009.
This date was 53 days after his June 18, 2009 vaccinations and four days before his next set of vaccinations, placing it outside the Table's specified window for an "on-Table" encephalopathy. Subsequently, on June 27, 2014, the petitioners moved to dismiss their petition, stating they would not pursue further proceedings because their expert could not conclude that the vaccinations were a cause-in-fact of Dagim's injuries.
Special Master Christian J. Moran issued a decision on July 1, 2014, dismissing the case for insufficient proof of causation, as the medical records did not support an "on-Table" injury and no competent medical opinion was offered to support an "off-Table" causation-in-fact claim.
However, in a subsequent decision on February 26, 2015, Special Master Moran awarded the petitioners $39,119.00 in attorneys' fees and costs, and $350.00 for out-of-pocket expenses. This award acknowledged that petitioners' counsel, Simina Vourlis, acted in good faith and had a reasonable basis for proceeding with the claim, even though compensation for the injury itself was denied.
Jennifer L. Reynaud represented the respondent.
Theory of causation
Petitioners alleged that Dagim Yilak, a minor, received DTaP-HIB-IPV, hepatitis B, Prevnar, and rotavirus vaccines on June 18, 2009, resulting in an "on-Table" encephalopathy or, alternatively, "off-Table" injuries including seizure disorder, infantile spasms with intractable epilepsy, hypertonia, and developmental delays. The Special Master's findings of fact determined that the onset of symptoms, specifically excessive eye blinking, occurred on August 10, 2009, which was 53 days post-vaccination and outside the Vaccine Injury Table's timeframe for encephalopathy. Petitioners subsequently moved to dismiss their petition, stating their expert could not conclude a causal link between the vaccinations and Dagim's injuries. The Special Master dismissed the petition for insufficient proof of causation, noting the lack of medical records supporting an "on-Table" injury and the absence of a competent physician's opinion to support an "off-Table" causation-in-fact claim. Although compensation for the injury was denied, Special Master Christian J. Moran awarded petitioners' counsel, Simina Vourlis, $39,119.00 in attorneys' fees and costs, and $350.00 for out-of-pocket expenses, finding that counsel acted in good faith with a reasonable basis for proceeding. Jennifer L. Reynaud represented the respondent. The decision was issued on July 1, 2014, with the fees and costs decision on February 26, 2015.