VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_12-vv-00709
Package ID: USCOURTS-cofc-1_12-vv-00709
Petitioner: Cynthia Smith
Filed: 2012-10-18
Decided: 2017-05-03
Vaccine: influenza
Vaccination date: 2011-08-24
Condition: Chronic Inflammatory Demyelinating Polyneuritis (CIDP) and/or Guillain-Barré syndrome (GBS)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Cynthia Smith filed a petition on October 18, 2012, alleging that a Fluzone influenza vaccination she received on August 24, 2011 caused her to develop Chronic Inflammatory Demyelinating Polyneuritis (CIDP) and/or Guillain-Barré syndrome (GBS).

The central dispute was onset timing. Petitioner alleged that her CIDP/GBS symptoms began within a month of her August 2011 vaccination. Respondent maintained that onset did not begin until late December 2011. Special Master Corcoran issued Findings of Fact on August 31, 2016, concluding that petitioner's symptoms began no earlier than December 29, 2011. The Special Master invited petitioner to obtain an expert report supporting her claim consistent with that fact determination. Petitioner instead moved for Judgment on the Administrative Record, largely objecting to the onset ruling without requesting reconsideration. Special Master Corcoran dismissed the petition on January 3, 2017.

Earlier in the case, petitioner's original counsel Thomas P. Gallagher withdrew on June 27, 2014. On May 27, 2015, the parties stipulated to an interim award of attorneys' fees of $17,434.65, payable to Mr. Gallagher, for his work while counsel of record.

Theory of causation field:
Fluzone Aug 24, 2011 → CIDP/GBS. Onset dispute: petitioner claimed within 1 month of vaccine; SM Corcoran found onset no earlier than Dec 29, 2011 (Findings of Fact Aug 31, 2016). Petitioner moved JAR objecting to onset ruling; SM dismissed Jan 3, 2017 (Downing, Van Cott & Talamante, Phoenix AZ; former counsel Gallagher). All DB fields correct.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_12-vv-00709-0
Date issued/filed: 2015-06-17
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 5/27/2015) regarding 49 DECISION Interim Fees Stipulation. Signed by Special Master Brian H. Corcoran. (ag) Copy to parties.
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Case 1:12-vv-00709-MBH Document 52 Filed 06/17/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-709V
(Not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
*
CYNTHIA SMITH, *
* Filed: May 27, 2015
Petitioner, *
* Decision by Stipulation; Attorney’s
v. * Fees & Costs
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Andrew Donald Downing, Phoenix, AZ, for Petitioner
Julia Wernett McInerny, Washington, DC, for Respondent
ATTORNEY’S FEES AND COSTS DECISION1
On September 10, 2012, Cynthia Smith filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (Athe Vaccine Program@). On June 27, 2014, I
granted the motion of Petitioner’s former counsel of record, Thomas P. Gallagher to withdraw
from the case.
On May 27, 2015, counsel for both parties filed a joint stipulation for interim attorney’s
fees and costs incurred while Mr. Gallagher was counsel of record. The parties have stipulated
that Petitioner’s former counsel of record should receive a lump sum of $17,434.65, ($17,200.00
1 Because this decision contains a reasoned explanation for my action in this case, I will post this 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 42
U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted 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.)

Case 1:12-vv-00709-MBH Document 52 Filed 06/17/15 Page 2 of 2
in fees and $234.65 in costs), in the form of a check payable to Petitioner and Petitioner’s
counsel. This amount represents a sum to which Respondent does not object.
I approve the requested amount for interim attorney’s fees and costs as reasonable.
Accordingly, an award in the amount of $17,434.65 should be made in the form of a check
payable jointly to Petitioner and Petitioner’s former counsel of record, Thomas P. Gallagher,
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.

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DOCUMENT 2: USCOURTS-cofc-1_12-vv-00709-1
Date issued/filed: 2017-05-03
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 1/3/2017) regarding 76 DECISION of Special Master. Signed by Special Master Brian H Corcoran. (kh) Copy to parties.
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Case 1:12-vv-00709-MBH Document 90 Filed 05/03/17 Page 1 of 3
REISSUED FOR PUBLICATION
3 MAY 2017
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-709V
(Not to be Published)
* * * * * * * * * * * * * * * * * * * * * * * * *
* Special Master Corcoran
CYNTHIA S. SMITH, *
* Filed: January 3, 2017
Petitioner, *
*
v. *
* Decision; Dismissing Case; Chronic
SECRETARY OF HEALTH * Inflammatory Demyelinating
AND HUMAN SERVICES, * Polyneuritis (“CIDP”); Guillain
* Barré Syndrome (“GBS”); Fluzone
Respondent. * (“Flu”) Vaccine.
*
* * * * * * * * * * * * * * * * * * * * * * * * *
DECISION DISMISSING CASE1
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Amy Kokot, U.S. Dep’t of Justice, Washington, DC, for Respondent.
On October 18, 2012, Cynthia Smith filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program” or “Program”).2 Mrs.
Smith alleges that she developed Chronic Inflammatory Demyelinating Polyneuritis (“CIDP”)
1 Although I have designated this as “not to be published,” because this decision contains a reasoned explanation for
my actions 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, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the
parties may object to the published ruling’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.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) (the “Vaccine Act” or “Act”).
Individual section references hereafter will be to § 300aa of the Act.

Case 1:12-vv-00709-MBH Document 90 Filed 05/03/17 Page 2 of 3
and/or Guillain-Barré syndrome (“GBS”) as a result of her August 24, 2011, receipt of the Fluzone
(“flu”) vaccine.
The parties disputed the onset of Mrs. Smith’s GBS and/or CIDP-related symptoms, with
Petitioner alleging that onset began within a month of her receipt of the flu vaccine, while
Respondent maintaining that onset began in late December 2011. At my direction, the parties
briefed the matter, and I concluded, based upon the record and their written filings, that Mrs.
Smith’s symptoms began no earlier than December 29, 2011. See August 31, 2016 Findings of
Fact (ECF No. 71) (the “Onset Ruling”).3 Based upon that ruling, I proposed that Petitioner
consider whether she attempt to obtain an expert report supporting her claim consistent with my
fact determination. Onset Ruling at 15.
Petitioner has now moved for Judgment on the Administrative Record. See Motion for
Judgment on the Administrative Record (“Mot. for Judgmnt”), filed as ECF No. 73 on Nov. 14,
2016.Petitioner largely objects that the Onset Ruling was in error. She did not, however, request
reconsideration of it, and (as it specifically noted) the fact findings it contains constituted the
operating basis upon which she could have attempted – if she so chose – to obtain a new expert
report consistent with its findings. She expressly disclaimed the opportunity to do so, however –
and even represented that she would not before issuance of the Onset Ruling. Mot. for Judgmnt at
2. As a result, she now lacks expert support for her claim consistent with the Onset Ruling.
To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that she suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). An examination of the record, however, does
not uncover any evidence that Ms. Smith suffered a “Table Injury.” Further, the record does not
contain a medical expert’s opinion or any other persuasive evidence indicating that the alleged
injury that Petitioner experienced could have been caused or significantly aggravated by the
vaccinations that she received in August 2011. Indeed, the existing expert report from Dr.
Kinsbourne disclaims that possibility, given my onset ruling, and Petitioner has not offered a
substitute expert opinion that is consistent with my fact determination. And the filed medical
records do not support Petitioner’s claim. Given that in almost all instances previously tried in the
Vaccine Program onset of a peripheral neuropathy like GBS or CIDP is generally found to occur
3 I decided the issue of onset based on the papers because I found that the contemporaneous medical records were
more persuasive than the proposed, after-the-fact testimony of witnesses who may have observed Petitioner’s
symptoms, or the Petitioner herself. See Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991), aff'd,
968 F.2d 1226 (Fed. Cir.), cert. den’d, Murphy v. Sullivan, 506 U.S. 974 (1992) (citing United States v. United States
Gypsum Co., 333 U.S. 364, 396 (1947) (“[i]t has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight.”)). Hearing the testimony of those witnesses live,
rather than reading their statements in affidavits, would be highly unlikely to change my view that contemporaneous
medical records should be given more weight.
2

Case 1:12-vv-00709-MBH Document 90 Filed 05/03/17 Page 3 of 3
no more than eight weeks after vaccination, I do not find it more likely than not that she could
carry that burden herein without expert support.
Under the Vaccine Act, a petitioner may obtain a Vaccine Program award based solely on
her claims. Rather, the petition must be supported by either medical records or by the opinion of a
competent physician. Section 13(a)(1). In this case, there is insufficient evidence in the record for
Petitioner to meet her burden of proof. Petitioner’s claim therefore cannot succeed and must be
dismissed. Section 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