VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00177
Package ID: USCOURTS-cofc-1_13-vv-00177
Petitioner: Barbara Hesse
Filed: 2013-03-07
Decided: 2014-11-07
Vaccine: influenza
Vaccination date: 2010-10-22
Condition: Guillan-Barré syndrome
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Barbara Hesse filed a petition on March 7, 2013, alleging that an influenza (flu) vaccination she received on October 22, 2010 caused her to develop Guillain-Barré syndrome (GBS). Special Master Moran held a fact-finding hearing via videoconference on December 4, 2013, and issued findings of fact on April 22, 2014 establishing that petitioner's weakness began approximately February 3, 2011, roughly fifteen weeks after her flu vaccination.

On May 12, 2014, petitioner filed a motion for a decision on the record, stating that she did not deem it worthwhile to continue pursuing the case. Special Master Moran dismissed the petition on June 11, 2014, finding that petitioner had failed to make a prima facie case that the flu vaccine caused her GBS. The Special Master found that no expert opinion had been submitted, no medical records supported a causal link between flu vaccination and GBS with a fifteen-week onset, and no Table injury had been established. Special Master Moran subsequently awarded attorneys' fees and costs of $30,000.00 to petitioner and her counsel, Isaiah Kalinowski of Maglio Christopher & Toale, PA, finding that the petition had been filed on a good-faith basis. Petitioner had not personally incurred any out-of-pocket litigation expenses.

Theory of causation field:
Flu Oct 22, 2010 → GBS (onset ~15 weeks/Feb 3, 2011). Fact hearing Dec 4, 2013 (videoconference). Petitioner moved for decision on the record without expert (May 12, 2014); SM Moran DISMISSED Jun 11, 2014: no expert, no medical record support, no Table injury. Fees $30,000 good-faith (Kalinowski, Maglio Christopher & Toale PA, Washington DC).

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_13-vv-00177-0
Date issued/filed: 2014-05-16
Pages: 9
Docket text: PUBLIC ORDER/RULING (Originally filed: 04/22/2014) regarding 34 Findings of Fact & Conclusions of Law. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
BARBARA HESSE, *
* No. 13-177V
Petitioner, * Special Master Christian J. Moran
*
v. *
*
SECRETARY OF HEALTH * Filed: April 22, 2014
AND HUMAN SERVICES, *
* Findings of fact; onset of weakness;
Respondent. * back pain; numbness; ataxia; GBS.
* * * * * * * * * * * * * * * * * * * * *
Isaiah Kalinowski, Maglio, Christopher & Toale, PA, Washington, DC, for
petitioner;
Gordon Shemin, United States Dep’t of Justice, Washington, DC, for respondent.
Findings of Fact*
On March 7, 2013, Barbara Hesse filed a petition in the National Vaccine
Injury Compensation Program (42 U.S.C. § 300aa-10 through 34 (2006)). In her
petition, Ms. Hesse alleged that the flu vaccine she received on October 22, 2010,
caused her to contract Guillain-Barré syndrome. On March 15, 2013, Ms. Hesse
filed a set of medical records, exhibits 1-5, and her affidavit, exhibit 6. Ms. Hesse
added two more affidavits (Brenda Orians and René Leonard) in the following
month. Collectively, the affidavits averred that Ms. Hesse started having pain in
her back and weakness in her legs in December 2010.
* The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 2 of 9
The Secretary reviewed this material in preparing her report, which was filed
pursuant to Vaccine Rule 4 on July 17, 2013. The Secretary noted that Ms.
Hesse’s first appointment with a medical professional after her flu vaccination was
on February 2, 2011. On this date, Ms. Hesse complained that for the last 2 weeks
she suffered a sore throat and left ear ache. Exhibit 5 at 7. Ms. Hesse first
complained about numbness in her legs when she went to the Winter Haven
Hospital emergency room on February 4, 2011. Exhibit 7 at 855.
The Secretary recognized that the account presented in the affidavits did not
match the information presented in the medical records. See Resp’t’s Rep’t at 12-
13. At an ensuing status conference, the parties planned to hold a hearing to
receive testimony from witnesses knowledgeable about Ms. Hesse’s health from
October 2010 until early February 2011.
Before this hearing was held, Ms. Hesse submitted an affidavit from her
husband, Robert. Exhibit 14. Ms. Hesse and Mr. Hesse testified, via
videoconferencing, at a hearing held on December 4, 2013.1
At the end of the hearing, the parties stated they did not want to file briefs.
Instead, the parties identified four topics about which the special master should
find facts. These topics were when Ms. Hesse started to experience weakness,
pain, numbness, and ataxia.
Standard for Finding Facts
Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
The process for finding facts in the Vaccine Program begins with analyzing
the medical records, which are required to be filed with the petition. 42 U.S.C.
§ 300aa–11(c)(2). Medical records that are created contemporaneously with the
events they describe are presumed to be accurate. Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
1 Ms. Hesse did not ask Ms. Orians or Ms. Leonard to testify.
2

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 3 of 9
Not only are medical records presumed to be accurate, they are also
presumed to be complete in the sense that the medical records present all the health
problems of the patient. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their health problems to the doctor. Third, having
heard about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras in which petitioners
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).
Decisions from the Court of Federal Claims have followed Cucuras in
affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010) (stating “[g]iven the inconsistencies between petitioner’s
testimony and his contemporaneous medical records, the special master’s decision
to rely on petitioner’s medical records was rational and consistent with applicable
law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,
36 Fed. Cl. 461, 465 (1996) (stating “The special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents’
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank’s medical
history silent on his loss of developmental milestones, the special master
3

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 4 of 9
questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d
545, 547-48 (Fed. Cir. 1997).
However, the presumption that contemporaneously created medical records
are accurate and complete is rebuttable. For cases alleging a condition found in the
Vaccine Injury Table, special masters may find when a first symptom appeared,
despite the lack of a notation in a contemporaneous medical record. 42 U.S.C.
§ 300aa-13(b)(2). By extension, special masters may engage in similar fact-
finding for cases alleging an off-Table injury. In such cases, special masters are
expected to consider whether medical records are accurate and complete. To
overcome the presumption that written records are accurate, testimony is required
to be “consistent, clear, cogent, and compelling.” Blutstein v. Sec’y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).
In determining the accuracy and completeness of medical records, special
masters will consider various explanations for inconsistencies between
contemporaneously created medical records and later given testimony. The Court
of Federal Claims listed four such explanations. The Court noted that
inconsistencies can be explained by: (1) a person’s failure to recount to the medical
professional everything that happened during the relevant time period; (2) the
medical professional’s failure to document everything reported to her or him; (3) a
person’s faulty recollection of the events when presenting testimony; or (4) a
person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y
Health & Human Servs., 110 Fed. Cl. 184, 203-4 (2013), aff’d, 2014 WL 1258137
(Fed. Cir. Mar. 28, 2014).
In weighing divergent pieces of evidence, special masters usually find
contemporaneously written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell v. Sec’y of
Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) (“[L]ike any norm based
upon common sense and experience, this rule should not be treated as an absolute
and must yield where the factual predicates for its application are weak or
lacking.”); Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391
(1998) (this rule “should not be applied inflexibly, because medical records may be
incomplete or inaccurate”); Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct.
4

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 5 of 9
726, 733 (1991) (“[T]he absence of a reference to a condition or circumstance is
much less significant than a reference which negates the existence of the condition
or circumstance”) (citation omitted), aff’d, 968 F.2d 1226 (Fed. Cir. 1992).
The relative strength or weakness of the testimony of a fact witness affects
whether this testimony is more probative than medical records. An assessment of a
fact witness’s credibility may involve consideration of the person’s demeanor
while testifying. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575
(Fed. Cir. 1993).
General Assessment of Witnesses
Although Ms. Hesse appeared to testify forthrightly, her memory of the
relevant time frame is not strong. One basic problem is that the critical events
happened approximately three years ago. In the intervening time, her recollection
inevitably must have faded. See Tr. 157. In addition, the experience of being
hospitalized for her Guillain-Barré syndrome was very traumatic for her. Tr. 46-
50. As a result, she, by her own admission, does not recall many events
independently. See Tr. 17 (failing to recall conversations with Ms. Orians or Ms.
Leonard), 69 (failing to recall conversations with emergency medical technicians
and Dr. Reddy), 83 (failing to recall details about the back pain before traveling to
Florida in November, 2010), 88 (failing to recall New Year’s Eve). In the absence
of an independent memory, Ms. Hesse testified about events that her husband
described to her. Tr. 39, 70, 99. Even with her husband’s assistance, Ms. Hesse
could not recall many details about her health from October 2010 to February
2011.
Likewise, Mr. Hesse appeared to testify as best as he was able to recall.
However his knowledge of his wife’s health (weakness, pain, and numbness)
derives from her experiences and communication to him. Both Ms. and Mr. Hesse
testified that Ms. Hesse seldom complained about physical ailments and her
reluctance to see a doctor when she was ill created tension in their marriage. Tr.
25-26, 109. Thus, although Mr. Hesse was not as traumatized as Ms. Hesse, Mr.
Hesse’s recollection was not particularly compelling.
Overall, the witnesses’ testimony was not sufficiently persuasive to
overcome a presumption that the medical records created in early February 2011
described Ms. Hesse’s medical history accurately.
5

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 6 of 9
Specific Findings of Fact
Back Pain
Mr. and Ms. Hesse planned to drive from their home in Ohio to their
residence in Florida, leaving on Saturday, November 12, 2010. Ms. Hesse was
responsible for packing their belongings into boxes for the trip. A few days before
their anticipated departure, Ms. Hesse developed a pain in her back. She did not
help carry luggage into the Hesses’ truck. Tr. 13-15, 57-59, 104-05.
Ms. Hesse’s back pain persisted. She asked her husband to purchase a
massage chair that she saw advertised on television. He did so and gave her the
chair as a present before Christmas. Tr. 22, 109, 155.
Ms. Hesse’s back pain did not interfere with her ability to walk in November
or December 2010. For example, she could routinely go on the short walk from
her residence to the neighborhood clubhouse. Tr. 19.
Weakness
In Ms. Hesse’s affidavit, she stated she had weakness in her lower limbs,
starting no later than mid-December 2010. Exhibit 6 at ¶ 3. In Ms. Hesse’s oral
testimony, she associated weakness with an illness that kept her in bed on
Thanksgiving.2 Tr. 92. This inconsistency about when her weakness began calls
into question the accuracy of Ms. Hesse’s recollections. In addition, Ms. Hesse, in
early January 2011, signed up to participate in a line dancing class. It seems
unlikely that a person with problems in their legs would voluntarily participate in
an activity requiring much movement. But see Tr. 101 (Ms. Hesse: stating she was
a “fool” for signing up for the dance class).
More persuasive evidence comes from the medical records created in early
February 2011. At Winter Haven Hospital, Ms. Hesse told Dr. Reddy, on February
6, 2011, that she had a “sore throat and cough 2 weeks ago. Took Z-PAK. Since
2 Ms. Hesse's physical and emotional state on Thanksgiving is unclear. She stated that an
illness kept her from attending a Thanksgiving Day dinner at her community's clubhouse with
her husband. She stated that this sickness was the only reason she did not leave the house. Tr.
18-20. But, she later testified that she was also angry at her son for choosing to go on a cruise,
rather than celebrate Thanksgiving with his parents. Tr. 28.
6

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 7 of 9
yesterday, feeling weakness in her lower extremities. The patient initially had
tingling in both upper and lower extremities and felt weakness in both upper and
lower extremities, more so in the lower extremities.” Exhibit 7 at 98. Dr. Reddy
referred her to Richard Hostler, a neurologist.
Dr. Hostler’s history is consistent with the history Dr. Reddy obtained. Ms.
Hesse told Dr. Hostler that she “recalls developing paresthesias in the hands and
feet, associated with some weakness of both on Thursday.[3] This progressed over
the intervening days to today being Sunday, February 6, 2011, at which time she is
no longer ambulatory.” Exhibit 7 at 102.
In a third account, Ms. Hesse stated she has been “weak with [sore throat] /
[upper respiratory infection] symptoms for the last few days.” Exhibit 7 at 862.
In addition to the affirmative evidence of when Ms. Hesse weakness began,
there is also negative evidence. When she went to the urgent care center on
February 2, 2011, she listed her chief complaint as a sore throat. Exhibit 5 at 7.
She did not list weakness or pain in her legs as a problem on February 2, 2011. Tr.
66-67, 98, 121. Although not dispositive of the issue, the omission of a complaint
about weakness or pain on February 2, 2011, tends to suggest that Ms. Hesse was
not having weakness or pain on that date.
In short, Ms. Hesse’s weakness began on February 3, 2011, and progressed
over the next three days. See Exhibit 7 at 862 (indicating that the onset of
symptoms was “acute”).
Numbness
As distinct from weakness and pain, there was less evidence about
numbness. For example, Ms. Hesse’s affidavit does not mention numbness at all.
See exhibit 6.
Without any persuasive testimony, it is relatively easy to accept Ms. Hesse’s
account about her numbness given in February 2011. In a record from Winter
Haven Hospital, Ms. Hesse was reported to have stated that after taking the Z-pack
prescribed by the urgent care center, “she felt pins and needles after taking this
med[ication].” Exhibit 7 at 856; accord Tr. 146-47. Ms. Hesse’s February 6, 2011
account to emergency medical technicians stated that her numbness began on
3 February 3, 2011, was a Thursday.
7

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 8 of 9
February 2, 2011, which is the same day as she visited the urgent care center.
Exhibit 7 at 13. As noted in the text, other records indicate that her numbness,
tingling, and weakness started after she began to take the Z-pack. Thus, it is likely
that Ms. Hesse was simply mistaken, by one day, when she said her symptoms
started on February 2, 2011. The entire record supports a finding that the onset of
problems was February 3, 2011.
Her recollection was given only a few days after the numbness apparently
began. Her recounting was to medical professionals who were going to treat her.
As such, Ms. Hesse’s case strongly resembles the situation the Federal Circuit
described in Cucuras. Her ability to recollect was strong and her motivation to
describe her problems as accurately as possible was high. Ms. Hesse’s later
attempt to revise what she told doctors in February 2011 is not credible.
Ataxia
In Ms. Hesse’s oral testimony, she described that she could not walk freely
around her residence by mid-January 2011. She stated that to move around, she
needed to hold onto countertops and chairs. Tr. 24, 101. She also testified that she
required assistance from her husband exiting his pickup truck and going into the
urgent care clinic on February 2, 2011. Tr. 97. A similar description of problems
in ambulation does not appear in her affidavit. See exhibit 6, ¶ 6-9 (listing Ms.
Hesse’s mid-January problem as a sore throat).
This testimony is difficult to credit. Although Ms. Hesse is a person who
prefers not to see doctors, Tr. 21, a persistent problem in a basic activity of daily
living, such as walking, is likely to motivate a person to seek medical attention.
Mr. Hesse would likely insist that his wife seek some help if she could not walk
around the house. Furthermore, if Ms. Hesse had to be helped into the urgent care
center, she likely would have reported the problem on the list of complaints. But,
she did not. Exhibit 5 at 7.
A more persuasive date of onset for Ms. Hesse’s trouble with walking comes
from records created at Winter Haven Hospital. There, she stated that she “was
started on a Z[-]pack and woke up the next morning with tingling in her
ext[remities] and feeling of being off balance with any ambulation.” Exhibit 7 at
862. Dr. Hostler’s record is even more specific. He reported that as of February 6,
2011, “she is no longer ambulatory.” Exhibit 7 at 102.
Ms. Hesse first had trouble walking on February 6, 2011.
8

Case 1:13-vv-00177-UNJ Document 36 Filed 05/16/14 Page 9 of 9
Conclusion
The parties are ordered to provide these Findings of Fact to any expert
whom they may retain to offer an opinion in this case. An expert’s assumption of
any fact that is inconsistent with these Findings of Fact will not be credited. Burns
v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed .Cir. 1993) (holding that
the special master did not abuse his discretion in refraining from conducting a
hearing when the petitioner’s expert “based his opinion on facts not substantiated
by the record”).
A status conference will be held on Wednesday, May 14, 2014 at 3:00
P.M. Eastern time. Ms. Hesse should be prepared to discuss her proposed next
steps for this case.
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
9

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_13-vv-00177-1
Date issued/filed: 2014-07-08
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 06/11/2014) regarding 38 DECISION of Special Master. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00177-UNJ Document 39 Filed 07/08/14 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
BARBARA HESSE, * No. 13-177V
* Special Master Christian J. Moran
Petitioner, *
* Filed: June 11, 2014
*
* Decision on the record; insufficient
v. * proof of causation;flu vaccine;
* Guillan-Barré syndrome (“GBS”)
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Isaiah Kalinowski, Maglio, Christopher & Toale, PA, Washington, DC, for
petitioner;
Gordon Shemin, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Barbara Hesse filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. §300aa—10 to—34 (2006), on March 7, 2013. Ms. Hesse alleges
that the flu vaccine she received on October 22, 2010, caused her to suffer Guillan-
Barré syndrome (“GBS”). The information in the record, however, does not show
entitlement to an award under the Program.
I. Procedural History
In support of her March 7, 2013 petition, Ms. Hesse periodically filed
medical records (exhibits 1-5) and affidavits supporting those records (exhibit 6, 8-
9). She filed a statement of completion on April 22, 2013.
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa—12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

Case 1:13-vv-00177-UNJ Document 39 Filed 07/08/14 Page 2 of 3
On July 17, 2013, respondent filed a Rule 4(c) report concluding that
petitioner failed to fulfill the criteria for a Vaccine Table injury and failed to
demonstrate by a preponderance of the evidence that Ms. Hesse’s GBS was caused
by the flu vaccine received on October 22, 2010. Resp’t’s Rep., filed July 17,
2013, at 13. In her report, respondent noted that petitioner first met with a medical
professional fifteen weeks after her flu vaccination. Id. at 2. Respondent also
argued that the account in petitioner’s affidavits did not match the information in
the medical records. Id. at 12-13.
A status conference was held on September 25, 2013, during which the
parties agreed to a fact hearing. Before this hearing was held, Ms. Hesse submitted
an affidavit from her husband, Robert Hesse. Exhibit 14. Ms. Hesse and Mr.
Hesse testified, via videoconferencing, at a hearing held on December 4, 2013.
On April 22, 2014, the findings of fact were issued stating that Ms. Hesse
did not suffer from back pain in November or December 2010. Findings of Fact at
6. In addition, Ms. Hesse’s weakness was found to have begun on February 3,
2011. Id. at 7.
On May 12, 2014, petitioner moved for a decision on the written record. In
her motion, Ms. Hesse stated that she “does not deem it worthwhile to pursue
prosecution.” Pet’r’s Mot., filed May 12, 2014, at ¶ 2. Respondent filed a
response stating “insufficient evidence has been provided to establish a more likely
than not causal connection between petitioner’s October 22, 2010 flu vaccination
and her GBS.” Resp’t’s Rep., filed May 28, 2014, at 2. Accordingly, this case is
now ready for adjudication.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioner must prove either 1) that the vaccinee suffered a “Table Injury”
– i.e., an injury falling within the Vaccine Injury Table – corresponding to one of
the vaccinee’s vaccinations, or 2) that the vaccinee suffered an injury that was
actually caused by a vaccine. See §§ 300aa—13(a)(1)(A) and 300aa—11(c)(1).
An examination of the record did not uncover any evidence that Ms. Hesse
suffered a “Table Injury.” Further, the record does not contain a medical expert’s
opinion or any other persuasive evidence indicating that Ms. Hesse’s condition was
significantly aggravated by a vaccine.
Under the Act, petitioners may not be given a Program award based solely
on the petitioners’ claims alone. Rather, the petition must be supported by either
2

Case 1:13-vv-00177-UNJ Document 39 Filed 07/08/14 Page 3 of 3
medical records or by the opinion of a competent physician. § 300aa—13(a)(1).
In this case, because the medical records do not support the Ms. Hesse’s claim, a
medical opinion must be offered in support. Ms. Hesse, however, has offered no
such opinion. Accordingly, it is clear from the record in this case that Ms. Hesse
has failed to demonstrate either that she suffered a “Table Injury” or that her
injuries were “actually caused” by a vaccination.
Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_13-vv-00177-2
Date issued/filed: 2014-10-06
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 9/9/2014) regarding 43 DECISION Fees Stipulation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00177-UNJ Document 47 Filed 10/06/14 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
BARBARA HESSE, * No. 13-177V
* Special Master Christian J. Moran
Petitioner, *
* Filed: September 9, 2014
*
* Attorneys’ fees and costs; award
v. * in the amount to which
* respondent does not object.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Isaiah Kalinowski, Maglio, Christopher & Toale, PA, Washington, DC, for
petitioner;
Gordon Shemin, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On September 8, 2014, petitioner filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
informally submitted a draft application for attorneys’ fees and costs to respondent
for review. Upon review of petitioner’s application, respondent raised objections
to certain items. Based on subsequent discussions, petitioner amended her
application to request $30,000.00, an amount to which respondent does not object.
The Court awards this amount.
Ms. Hesse claimed that the flu vaccine she received on October 22, 2010,
caused her to suffer Guillan-Barré syndrome (“GBS”). See Petition, filed March 7,
2013. Following the undersigned’s April 22, 2014 findings of fact, Ms. Hesse
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.

Case 1:13-vv-00177-UNJ Document 47 Filed 10/06/14 Page 2 of 2
moved for a decision on the written record. In her motion, Ms. Hesse stated that
she “does not deem it worthwhile to pursue prosecution.” Pet’r’s Mot., filed May
12, 2014, at ¶ 2. On June 11, 2014, the undersigned ruled that Ms. Hesse was not
entitled to compensation. Decision, 2014 WL 3058209 (Fed. Cl. Spec. Mstr. June
11, 2014).
Even though compensation was denied, a petitioner who brings her petition
in good faith and who has a reasonable basis for the petition may be awarded
attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). Here, counsel for
petitioners spent time gathering and filing medical records and affidavits as well as
prepared for and participated in a fact hearing on behalf of Ms. Hesse. Counsel
took steps to resolve this case relatively quickly so as not to increase costs and
expenses unnecessarily. Thus, because petitioner’s counsel acted in good faith and
there was a reasonable basis for proceeding, petitioner is eligible for an award of
attorneys’ fees and costs. Respondent does not contend that petitioner failed to
satisfy these criteria.
Ms. Heese seeks a total of $30,000.00 in attorneys’ fees and costs for her
counsel. Additionally, in compliance with General Order No. 9, petitioner states
that she incurred no out-of-pocket litigation expenses while pursuing this claim.
Respondent has no objection to the amount requested for attorneys’ fees and costs.
After reviewing the request, the Court awards the following:
A lump sum of $30,000.00 in the form of a check made payable to
petitioner and petitioner’s attorney, Isaiah Kalinowski, Esq., for
attorneys’ fees and other litigation costs available under 42 U.S.C. §
300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2