VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00633
Package ID: USCOURTS-cofc-1_13-vv-00633
Petitioner: Josselyn Kish
Filed: 2013-09-03
Decided: 2015-10-21
Vaccine: MMR
Vaccination date: 2011-01-17
Condition: permanent degradation in her immune system and an aggravation of her immune disorder
Outcome: compensated
Award amount USD: 26525

AI-assisted case summary:
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 October 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.

Theory of causation field:
Petitioner Kimberly Carter, on behalf of minor Josselyn Kish, alleged that an MMR and/or varicella vaccine administered on January 17, 2011, caused a permanent degradation and aggravation of her immune system. The petition was filed on September 3, 2013. The case was dismissed for insufficient proof. The Special Master noted that the petitioner failed to meet the criteria for a Vaccine Table injury and could not demonstrate by a preponderance of the evidence that the alleged injuries were caused in fact by the vaccine. The petitioner failed to put forth a medical theory of causation and did not file supporting medical literature or an expert medical opinion. Although petitioner filed reports from Dr. Alan Levin, she ultimately determined she would be unable to meet her burden of proof. The respondent filed reports from Dr. Stephen McGeady. The public decision does not detail the specific mechanism of causation. Compensation was denied, but attorneys' fees and costs totaling $26,525.00 were awarded to petitioner's counsel, Andrew Downing of Van Cott & Talamante, PLLC, as the petition was brought in good faith with a reasonable basis, and respondent did not object. Special Master Christian J. Moran issued the decision on dismissal on August 19, 2015, and the decision on fees on October 21, 2015. The theory of causation was "Off-Table."

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00633-0
Date issued/filed: 2015-09-16
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 08/19/2015) regarding 47 DECISION of Special Master. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00633-UNJ Document 51 Filed 09/16/15 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
KIMBERLY CARTER, *
on behalf of her minor child, *
JOSSELYN KISH, a minor, * No. 13-633V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 19, 2015
*
SECRETARY OF HEALTH * Dismissal; measles-mumps-rubella
AND HUMAN SERVICES, * (“MMR”); varicella vaccine;
* permanent immune system
Respondent. * degradation; insufficient proof.
* * * * * * * * * * * * * * * * * * * * *
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Ryan Pyles, United States Dep’t of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Kimberly Carter filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa—10 et seq., on September 3, 2013. Her petition
alleged that her minor child, Josselyn Kish, suffered from a permanent degradation
in her immune system and an aggravation of her immune disorder as result of a
measles-mumps-rubella (“MMR”) and/or a varicella vaccine received on January
17, 2011. The information in the record, however, does not show entitlement to an
award under the Program.
I. Procedural History
On September 3, 2013, Ms. Kimberly Carter, on behalf of her minor child,
Josselyn Kish, filed a petition alleging that Josselyn suffered from a permanent
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-00633-UNJ Document 51 Filed 09/16/15 Page 2 of 3
degradation in her immune system and an aggravation of her immune disorder
which was caused in fact by a measles-mumps-rubella (“MMR”) and/or a varicella
she received on January 17, 2011. No medical records were filed with the petition
as required by 42 U.S.C. § 300aa—11(c). Ms. Carter filed an affidavit and medical
records in support of her petition on September 9, 2013, (exhibits 1-9), followed by
a statement of completion on October 18, 2013.
On November 22, 2013, the Secretary filed a Rule 4(c) report in which she
concluded that Ms. Carter failed to fulfill the criteria for a Vaccine Table injury
and failed to demonstrate by a preponderance of the evidence that Josselyn’s
injuries were caused in fact by the measles-mumps-rubella (“MMR”) and/or a
varicella vaccine received on January 17, 2011. Resp’t’s Rep. at 8. The Secretary
noted that Ms. Carter failed to put forth a medical theory of causation and failed to
file medical literature or an expert medical opinion explaining how the measles-
mumps-rubella (“MMR”) and/or varicella vaccine could have caused Josselyn’s
injuries. Id.
Ms. Carter periodically filed additional medical records (exhibit 10-12). On
March 6, 2014, the undersigned ordered that the expert’s report would serve as
each expert’s direct testimony. Petitioner was ordered to file her expert report by
May 7, 2014. After several extensions of time, Ms. Carter filed two reports from
Dr. Alan Levin. Exhibit 13, filed July 7, 2014; exhibit 15, filed Oct. 16, 2014. In
response, the Secretary filed reports from Dr. Stephen McGeady. Exhibit A, filed
Jan. 14, 2015; exhibit C, filed Apr. 9, 2015.
Ms. Carter was ordered to file a supplemental report from Dr. Levin by June
1, 2015. No additional report was filed by this deadline. Instead, on July 21, 2015,
Ms. Carter filed an unopposed motion for a decision dismissing her petition. In her
motion, Ms. Carter noted that “[a]n investigation of the facts and science
supporting her case has demonstrated . . . that she will be unable to prove that she
is entitled to compensation.” Pet’r’s Mot. for Dec. at ¶2.
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).
2

Case 1:13-vv-00633-UNJ Document 51 Filed 09/16/15 Page 3 of 3
An examination of the record did not uncover any evidence that Josselyn suffered a
“Table Injury.”
Under the Act, a petitioner may not be given a Program award based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa—13(a)(1).
In this case, because the medical records do not support Ms. Carter’s claim, a
medical opinion must be offered in support. Although Ms. Carter has provided an
opinion from Dr. Levin, she has determined that she will be unable to meet her
burden of proof to establish she is entitled to compensation.
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-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_13-vv-00633-1
Date issued/filed: 2015-10-21
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 09/21/2015) regarding 52 DECISION Fees Stipulation. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00633-UNJ Document 55 Filed 10/21/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * * * * *
KIMBERLY CARTER, on behalf of her *
minor child, JOSSELYN KISH, a minor, * No: 13-633V
* Special Master Christian J. Moran
Petitioner, *
*
v. * Filed: September 21, 2015
*
SECRETARY OF HEALTH * Attorneys’ fees and costs; award
AND HUMAN SERVICES, * in the amount to which respondent
* does not object.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner;
Ryan D. Pyles, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On September 8, 2015, respondent filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
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 $26,525.00, an amount to which respondent does not object. The Court
awards this amount.
On September 3, 2013, Kimberly Carter filed a petition for compensation on
behalf of her minor child, Josselyn Kish, alleging that the measles-mumps-rubella
(“MMR”) and/or a varicella, which Josselyn received on January 17, 2011, caused
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 ruling 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-00633-UNJ Document 55 Filed 10/21/15 Page 2 of 2
her to suffer from a permanent degradation in her immune system and an
aggravation of her immune disorder. The information in the record, however, did
not show entitlement to an award under the Program. Decision, issued August 19,
2015.
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
petitioner gathered medical records and obtained reports from experts, and moved
for a decision on the record when further investigation revealed that petitioner was
unlikely to prove her case. Thus, because petitioner’s counsel acted in good faith
and because 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.
Petitioner seeks a total of $26,525.00 in attorneys’ fees and costs for her
counsel. Additionally, in compliance with General Order No. 9, petitioner
represents that she personally incurred no reimbursable costs in pursuit of her
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 $26,525.00 in the form of a check made payable to
petitioner and petitioner’s attorney, Van Cott & Talamante, PLLC,
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, Dan Hoffman, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2