Edwin W. Fockler v. HHS - Hepatitis B, transverse myelitis (2014)

Edwin W. Fockler filed a petition on April 4, 2013, alleging that a hepatitis B vaccination he purportedly received on August 23, 2010 caused him to develop transverse myelitis (TM).

Medical records confirmed that petitioner received three hepatitis B vaccinations — on February 19, April 29, and June 28, 2010 — but never provided proof that he received a fourth shot on August 23, 2010 as alleged. Medical records established that petitioner's TM began in early October 2010, more than three months after his third hepatitis B vaccination on June 28, 2010.

Special Master Millman dismissed the petition on March 31, 2014, for two independent reasons. First, petitioner failed to establish by preponderant evidence that he received the August 23, 2010 vaccination underlying his claim, and the more than three-month onset between his confirmed third vaccination and his TM was an interval that the special master had never found sufficient to establish causation.

Second, the petition was dismissed for failure to prosecute: petitioner became unresponsive to his counsel for several months after learning of the unfavorable prospects of his case, despite multiple telephone calls, letters, and a court-ordered Show Cause process. Special Master Millman subsequently awarded attorneys' fees and costs of $21,514.70, payable jointly to petitioner and his counsel's firm, Maglio, Christopher & Toale, P.A., finding that the petition had been filed on a good-faith basis.

Petitioner had not personally incurred any out-of-pocket litigation expenses.