L.A. v. HHS - Influenza, bilateral striatal necrosis (BSN) (2016)

On September 24, 2012, Magnus and Brandi Akerstrom filed a petition on behalf of their minor son, L.A., alleging that the FluMist vaccine administered on December 29, 2010, caused him to suffer seizures and encephalitis, with the litigated injury ultimately identified as bilateral striatal necrosis (BSN). Petitioners argued that L.A., who was five years old at the time, was concurrently fighting a pre-existing infectious illness, possibly Mycoplasma pneumoniae, and that the FluMist vaccine acted synergistically with this infection to trigger an immune-mediated process leading to BSN.

L.A. was born on February 16, 2005. He appeared healthy in videos from December 25-26, 2010.

On December 28, 2010, he developed symptoms of a viral illness, including headache, cough, stomachache, malaise, and fever. The following morning, December 29, he had a temperature of 101 degrees Fahrenheit.

During a pediatric visit that afternoon, his temperature was normal, and the doctor noted his viral symptoms had resolved before administering FluMist. Over the next two days, L.A. experienced recurrent fever, profound sleepiness, and abdominal pain.

On December 31, 2010, his eyes deviated left, he became unresponsive, and he had a tonic-clonic seizure lasting approximately 20-25 minutes, which was stopped by EMS with Valium. He was hospitalized from December 31, 2010, to February 2, 2011, with diagnoses including encephalitis of unknown etiology, hyperkinetic movement disorder, expressive aphasia, and motor ataxia.

Approximately six weeks later, he was hospitalized again and discharged with diagnoses including BSN, positive Mycoplasma IgM and IgG, dystonia, dysarthria, aphasia, hyperkinetic movement disorder, and encephalopathy. Respondent opposed entitlement, initially arguing that none of L.A.'s treating doctors attributed BSN to FluMist and that petitioners lacked expert proof.

Petitioners presented the report and testimony of Dr. Carlo Tornatore, a neurologist, who opined that BSN is immune-mediated, fits within the ADEM category, and can occur after an infectious or antigenic trigger.

He suggested L.A.'s Mycoplasma titers might be false positives but stated that even if L.A. had Mycoplasma, FluMist could have augmented the immune response and acted as a substantial factor. He cited literature on influenza-related encephalopathy, BSN, cytokines, and blood-brain-barrier injury, noting L.A.'s prior FluMist exposure.

Respondent's experts included pediatric neurologist Dr. Michael Kohrman, pediatric infectious disease specialist Dr.

Hayley Gans, and pediatric immunologist Dr. Steven McGeady.

Dr. Kohrman attributed the illness to a single infectious process, viewing Mycoplasma pneumoniae as sufficient and necessary, and noted the absence of case reports linking FluMist to BSN.

Dr. Gans also attributed BSN to Mycoplasma, considered the one-to-two-day interval too rapid for FluMist, and stated FluMist could not cause influenza infection.

Dr. McGeady opined that the rapid development of CNS lesions (40-48 hours post-vaccination) was too fast for a FluMist-driven immune mechanism and that the alleged synergy lacked laboratory support.

Special Master Laura D. Millman granted entitlement on December 15, 2016, finding the case governed by Althen and Shyface principles.

She credited Dr. Tornatore's synergistic immune theory, concluding that both FluMist and the pre-vaccine infection were substantial factors and that the two-day interval was medically appropriate for immune activation.

She noted some treating physician support, such as Dr. Harry Abram's 2013 reference to vaccine-related encephalopathy.

Following entitlement, damages were resolved by proffer. On December 6, 2019, Special Master Daniel T.

Horner awarded $1,352,278.47 payable to L.A.'s guardians/conservators for L.A.'s benefit, comprising $1,047,884.72 for lost future earnings, $250,000.00 for pain and suffering, and $54,393.75 for first-year life care expenses. An additional $66,794.04 was awarded to Magnus and Brandi Akerstrom for past unreimbursable expenses.

An annuity was also awarded for future life-care items, with specified growth rates for medical and non-medical expenses. Petitioners were represented by Clifford J.

Shoemaker at entitlement and Renee Gentry at damages.