April Polite v. HHS - Hepatitis B, cerebrovascular infarct (2015)

On January 29, 2013, April Polite filed a petition on behalf of her minor child, LKT, alleging that LKT suffered a cerebrovascular infarct caused by the Prevnar, Rotateq, Pentacel, and Hepatitis B vaccines received on May 24, 2010. Petitioner's counsel was Danielle A.

Strait of Maglio Christopher and Toale, PA. Respondent was represented by Lindsay Corliss of the United States Department of Justice.

The case was initially assigned to Special Master Hastings and later reassigned to Special Master Lisa Hamilton-Fieldman. Following a status conference on November 19, 2013, the parties agreed that updated medical documentation was necessary, and an expert report filing schedule was established.

Petitioner filed four motions for extensions of time to file her expert report. By July 1, 2014, over seven months after the initial schedule, an expert report had not been filed.

During a status conference on July 1, 2014, Petitioner's counsel indicated she had been unable to contact her client since April 2014. An order to show cause was issued, directing Petitioner to inform the court by September 19, 2014, how she wished to proceed and to detail good-faith efforts to secure an expert report.

Petitioner's counsel filed a status report on September 19, 2014, reiterating that she had been unable to communicate with her client despite attempts via mail, email, and phone, and that mail sent to Petitioner was returned undelivered. Special Master Hamilton-Fieldman dismissed the case on January 8, 2015, for failure to prosecute, citing Petitioner's failure to communicate with her attorney and comply with court orders as evidence of disinterest.

The dismissal was alternatively based on insufficient proof of causation, as the record did not contain evidence of a "Table Injury" or a medical expert's opinion, or any other persuasive evidence, linking LKT's injuries to the vaccines. The Special Master noted that compensation cannot be awarded based solely on the petitioner's claims and requires support from medical records or a competent physician's opinion, neither of which was sufficiently provided.

On March 10, 2015, Petitioner filed a Stipulation of Facts Concerning Final Attorneys’ Fees and Costs. Pursuant to this stipulation, the parties agreed to an award of $26,190.00 in attorneys' fees and costs.

Petitioner represented that she did not personally incur any expenses. Special Master Hamilton-Fieldman found that the petition was brought in good faith with a reasonable basis, making an award for fees and costs appropriate under 42 U.S.C. § 300aa-15(b) and (e)(1).

The award of $26,190.00 was made payable jointly to Petitioner and Petitioner's counsel, Danielle A. Strait.