VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_12-vv-00556 Package ID: USCOURTS-cofc-1_12-vv-00556 Petitioner: David Pokorny Filed: 2012-08-30 Decided: 2014-08-26 Vaccine: influenza Vaccination date: 2010-08-30 Condition: Guillain-Barré syndrome Outcome: dismissed Award amount USD: AI-assisted case summary: David Pokorny filed a petition on August 30, 2012, alleging that an influenza vaccination he received on August 30, 2010, caused him to develop Guillain-Barré syndrome (GBS). The petition was filed in the National Vaccine Injury Compensation Program. After approximately two years of gathering relevant medical records, the petitioner filed a motion on July 28, 2014, seeking a decision to dismiss their petition. The petitioner indicated that an investigation into the facts and science supporting their claim had demonstrated an inability to prove entitlement to compensation under the Vaccine Program. To receive compensation, a petitioner must prove either a "Table Injury" corresponding to a vaccination or an injury actually caused by a vaccine. The public decision does not describe any evidence that the petitioner suffered a "Table Injury." Furthermore, the record did not contain a medical expert's opinion or other persuasive evidence indicating that Mr. Pokorny's alleged injuries were vaccine-caused. The public decision notes that under the Vaccine Act, a petitioner cannot receive an award based solely on their claims; the petition must be supported by medical records or a competent physician's opinion. As there was insufficient evidence in the record for Mr. Pokorny to meet his burden of proof, the case was dismissed for insufficient proof. Special Master Brian H. Corcoran issued the decision dismissing the case on July 28, 2014. Subsequently, on July 28, 2014, the parties filed a joint stipulation regarding attorneys' fees and costs. The parties stipulated that the petitioner's counsel should receive a lump sum of $37,018.49, payable jointly to the petitioner and his counsel, Laurence F. Padway of the Law Offices of Laurence F. Padway. Respondent did not object to this amount. The petitioner also filed a statement indicating he had incurred no reimbursable costs. Special Master Corcoran approved the requested amount for attorneys' fees and costs as reasonable and ordered that judgment be entered accordingly. Petitioner's counsel was Laurence F. Padway, and respondent's counsel was Claudia B. Gangi. Theory of causation field: Petitioner David Pokorny alleged that an influenza vaccine received on August 30, 2010, caused Guillain-Barré syndrome (GBS). The petition was filed on August 30, 2012. On July 28, 2014, Petitioner moved for dismissal, acknowledging an inability to prove entitlement to compensation. The Special Master's decision noted the absence of evidence of a "Table Injury" and insufficient evidence, including lack of a medical expert's opinion, to prove the alleged injuries were vaccine-caused. The case was dismissed for insufficient proof by Special Master Brian H. Corcoran on July 28, 2014. Attorneys' fees and costs were stipulated at $37,018.49, payable jointly to Petitioner and counsel Laurence F. Padway (Law Offices of Laurence F. Padway), with Respondent not objecting. Petitioner incurred no out-of-pocket costs. Respondent's counsel was Claudia B. Gangi. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_12-vv-00556-0 Date issued/filed: 2014-08-26 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 07/28/2014) regarding 41 DECISION of Special Master (Signed by Special Master Brian H. Corcoran.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:12-vv-00556-UNJ Document 42 Filed 08/26/14 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-556 (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * DAVID POKORNY, * * Filed: July 28, 2014 * Petitioner, * Petitioner’s Motion for a Decision v. * Dismissing the Petition; Insufficient Proof * of Causation; Vaccine Act Entitlement; SECRETARY OF HEALTH * Denial Without Hearing AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Laurence F. Padway, Alameda, CA, for Petitioner. Claudia B. Gangi, Washington, DC, for Respondent. DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1 On August 30, 2012, David Pokorny filed a petition in the National Vaccine Injury Compensation Program2 alleging that the influenza (“flu”) vaccine received on August 30, 2010 caused his Guillain-Barré syndrome (“GBS”). See Petition at 1 (ECF Docket No. 1) After gathering their relevant medical records over the next two years, Petitioners filed a motion on July 28, 2014 seeking a decision dismissing their petition, indicating that an 1 Because this decision contains a reasoned explanation for my actions in this case, it will be posted 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 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. Case 1:12-vv-00556-UNJ Document 42 Filed 08/26/14 Page 2 of 2 investigation of the facts and science supporting their claim had demonstrated that he would be unable to prove his entitlement to compensation in the Vaccine Program. To receive compensation under the Program, Petitioner must prove either 1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to one of his vaccinations, or 2) that he 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 Petitioner suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that Mr. Pokorny’s alleged injuries were vaccine-caused. 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 record for Mr. Pokorny to meet his 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 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_12-vv-00556-1 Date issued/filed: 2014-08-26 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 07/28/2014) regarding 40 DECISION Fees Stipulation/Proffer (Signed by Special Master Brian H. Corcoran.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:12-vv-00556-UNJ Document 43 Filed 08/26/14 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-556V (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * * DAVID POKORNY, * * Filed: July 28, 2014 Petitioner, * * v. * * Decision by Stipulation; Attorneys’ SECRETARY OF HEALTH * Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Laurence F. Padway, Law Offices of Laurence F. Padway, Alameda, CA, for Petitioner. Claudia B. Gangi, U.S. Dep’t of Justice, Washington, DC, for Respondent. ATTORNEYS’ FEES AND COSTS DECISION1 On August 30, 2012, David Pokorny filed a petition seeking compensation under the National Vaccine Injury Compensation Program. On July 28, 2014, the parties filed motion for a dismissal decision. On July 28, 2014, counsel for both parties filed another joint stipulation, this time regarding attorneys’ fees and costs. The parties have stipulated that Petitioner’s counsel should receive a lump sum of $37,018.49 in the form of a check jointly payable to Petitioner and 1 Because this decision contains a reasoned explanation for my action in this case, it will be posted 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 decision’s inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) permit each party 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 decision will be available to the public. Id. Case 1:12-vv-00556-UNJ Document 43 Filed 08/26/14 Page 2 of 2 Petitioner’s counsel. This amount represents a sum to which Respondent does not object. In addition, in accordance with General Order #9, Petitioner filed a statement on July 28, 2014, indicating that he had incurred no reimbursable costs in pursuit of his claim. I approve the requested amount for attorneys’ fees and costs as reasonable. Accordingly, an award should be made in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Laurence F. Padway, Esq., in the amount of $37,018.49. 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 (jointly or separately) notices renouncing their right to seek review.