Josselyn Kish v. HHS - MMR, permanent degradation in her immune system and an aggravation of her immune disorder (2015)

On September 3, 2013, Kimberly Carter, on behalf of her minor child Josselyn Kish, filed a petition alleging that Josselyn suffered a permanent degradation in her immune system and an aggravation of her immune disorder as a result of a measles-mumps-rubella (MMR) and/or varicella vaccine received on January 17, 2011. No medical records were filed with the initial petition.

Ms. Carter later filed an affidavit and medical records.

The Secretary of Health and Human Services concluded that the petitioner failed to meet the criteria for a Vaccine Table injury and could not demonstrate by a preponderance of the evidence that Josselyn's injuries were caused in fact by the vaccine. The Secretary noted that the petitioner failed to present a medical theory of causation and did not file supporting medical literature or an expert medical opinion.

The petitioner was ordered to file an expert report, and after several extensions, filed two reports from Dr. Alan Levin.

The Secretary filed reports from Dr. Stephen McGeady.

Following a deadline for a supplemental report from Dr. Levin, which was not filed, Ms.

Carter filed an unopposed motion to dismiss her petition on July 21, 2015. In the motion, Ms.

Carter stated that an investigation of the facts and science supporting her case demonstrated that she would be unable to prove entitlement to compensation. Special Master Christian J.

Moran issued a decision on August 19, 2015, dismissing the case for insufficient proof, noting that the record did not show evidence of a "Table Injury" and that while Dr. Levin provided an opinion, Ms.

Carter determined she could not meet her burden of proof. The public decision does not describe the specific onset of symptoms, diagnostic tests, or treatments.

On September 21, 2015, Special Master Christian J. Moran issued a decision regarding attorneys' fees and costs.

Although compensation was denied, the petition was brought in good faith and had a reasonable basis. Petitioner's counsel gathered medical records and obtained expert reports, and moved for a decision on the record when further investigation revealed the unlikelihood of proving the case.

The respondent did not object to an award of attorneys' fees and costs. The court awarded a lump sum of $26,525.00, payable to petitioner and petitioner's attorney, Van Cott & Talamante, PLLC, for attorneys' fees and other litigation costs.

Petitioner's counsel was Andrew Downing, and respondent's counsel was Ryan Pyles.