David Alexander Maher v. HHS - Tdap, neurologic injury (2015)

David Alexander Maher filed a petition on July 29, 2013, initially pro se, alleging that a tetanus, diphtheria and acellular pertussis (Tdap) vaccination he received on July 28, 2010, caused him to sustain a "neurologic injury." Petitioner, born July 23, 1962, stated he was healthy and active prior to the vaccination, which he received at work following an exposure to a doctor confirmed to have pertussis. Approximately three hours after the vaccination, he reported experiencing a high fever lasting three days, saturated bedding from sweat, and extreme fatigue and sleepiness.

He alleged that since July 28, 2010, his symptoms worsened and became more frequent, including alleged encephalitis, weak productive cough, severe weakness, severe sleepiness, trembling in extremities, severe headaches, seizure-like activity, confusion, fatigue, aphasia, poor balance, awkward movements, paralysis, personality changes, poor social skills, memory problems, disorientation, difficulty with daily living activities, and employment problems. He stated he could no longer perform his former job as a medical office assistant.

On April 13, 2011, he was sent home from work for what a co-worker physician described as a tonic-clonic seizure. He presented to an emergency department for uncontrollable shaking and body movements on May 10, May 11, and August 25, 2011.

Petitioner alleged he sustained a "neurologic injury" caused by the vaccine and that his ongoing condition was a sequela of that disorder. Prior to the vaccination, petitioner's medical history included chronic lower back pain, degenerative disc disease, and an "undiagnosed sleep disorder." He had been exposed to pertussis from July 17-25, 2010.

On August 2, 2010, he followed up with Dr. Wilson Fung, who documented petitioner's 30-plus year history of excessive daytime somnolence, noting he "falls asleep within minutes in quiet environment." Dr.

Fung diagnosed occupational exposure to pertussis and sleep-related breathing disorder, narcolepsy/obstructive sleep apnea (OSA), ordering antibiotics and a sleep study. Petitioner saw Dr.

George C. Yu for a sleep consultation, who noted petitioner's progressive daytime sleepiness for 30 years, worsened since his August 2010 pertussis infection.

Dr. Yu's assessment was "suggestive but not diagnostic of narcolepsy without cataplexy" and "idiopathic hypersomnia," and he did not attribute petitioner's problems to the Tdap vaccination.

In July 2011, Dr. Allan D.

Wu at UCLA evaluated petitioner for a hand tremor that had progressed to shaking, posturing, jaw clenching, and head shaking, with involuntary movements and writhing arms. Dr.

Wu's examination was normal, and he concluded petitioner had a functional movement disorder, recommending coping strategies and re-adaptation. Petitioner saw Dr.

Pari Young, a neurologist, who agreed with a "functional movement disorder" diagnosis, also noting "possible late onset dystonia, psychomotor slowing and possible early cognitive deterioration." Dr. Young documented petitioner's belief that his symptoms resulted from the Tdap vaccine, noting it was "possible" he had encephalitis, but his MRI was negative for demyelinating disease or ischemia.

Other physicians evaluated petitioner: Dr. Scott Tushla diagnosed "idiopathic hypersomnia" and a head tremor; Dr.

Timothy Sheehy suspected a psychogenic movement disorder; Dr. Lakshman Rasiah concluded an adjustment reaction disorder; Erik Lande, Ph.D., determined normal cognitive function with some short-term memory issues likely related to medication; and Dr.

Stephen Rolanksy suspected a neuropsychiatric disorder. None of these physicians concluded the Tdap vaccine caused petitioner's condition.

Petitioner filed his petition pro se on July 29, 2013. He later retained counsel Deborah Mandas Knopfler.

Special Master Nora Beth Dorsey issued a decision on December 30, 2014, dismissing the petition. Petitioner alleged a "Table Injury" and a "causation-in-fact" injury.

The Special Master found no evidence of a Table Injury, as the alleged symptoms did not meet the definition of encephalopathy within the required 72-hour timeframe, and medical records did not support a finding of brain impairment. Regarding causation-in-fact, the Special Master noted petitioner conceded the lack of a medical expert report causally linking his disabilities to the vaccine.

Petitioner requested judicial notice of known Tdap side effects, arguing expert opinion was not required. The Special Master found that the diagnosed conditions (narcolepsy, OSA, idiopathic hypersomnia, functional movement disorder, etc.) were not the type for which judicial notice could substitute for expert medical opinion.

Petitioner failed to establish a medical theory connecting the vaccine and injury (Althen Prong One), a logical sequence of cause and effect (Althen Prong Two), or a proximate temporal relationship (Althen Prong Three). The petition was dismissed for insufficient proof, and no compensation was awarded.