VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00866
Package ID: USCOURTS-cofc-1_13-vv-00866
Petitioner: Kendy Sue Wilson
Filed: 2013-11-01
Decided: 2015-11-12
Vaccine: influenza
Vaccination date: 2011-01-29
Condition: sensorineural hearing loss and tinnitus
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kendy Sue Wilson filed a petition on November 1, 2013, seeking compensation under the National Vaccine Injury Act of 1986. She alleged that an influenza vaccination received on January 29, 2011, caused her to suffer sensorineural hearing loss (SNHL) and tinnitus. The respondent filed a Rule 4 report on April 4, 2014, stating that the case was not appropriate for compensation because the petitioner failed to provide preponderant evidence. On September 28, 2015, the parties filed a joint stipulation for dismissal. In this stipulation, the petitioner acknowledged that she would be unable to prove entitlement to compensation in the Vaccine Program, understanding that a dismissal would result in a judgment against her and end all rights in the program. The petitioner stated that an investigation of the facts and science supporting the case demonstrated she would be unable to prove entitlement. The public decision does not describe the specific onset of symptoms, medical records, diagnostic tests, or treatments. To receive compensation, a petitioner must prove either a "Table Injury" or that the injury was actually caused by a vaccine. The record did not contain evidence of a "Table Injury," nor did the petitioner allege one. While both parties offered medical expert opinions on causation, the record did not contain a sufficient medical expert opinion indicating the injuries were caused by the vaccination, and the petitioner was unable to retain an additional expert. The public decision notes that a petitioner cannot be awarded compensation based solely on claims; the petition must be supported by medical records or a competent physician's opinion. As the medical records were insufficient and no persuasive medical expert opinion was offered, the petition was dismissed for insufficient proof. Chief Special Master Nora Beth Dorsey issued the decision dismissing the petition on September 29, 2015. Subsequently, on October 20, 2015, the parties filed a Stipulation of Fact Regarding Final Attorneys’ Fees and Costs. The parties stipulated to a total award of attorneys’ fees and costs of $34,796.25. Petitioner’s counsel stated that the petitioner did not advance any reimbursable costs. Chief Special Master Dorsey granted the request for approval and payment of attorneys’ fees and costs, ordering a lump sum of $34,796.25 payable jointly to the petitioner and her counsel, Maximillian J. Muller of Muller Brazil, LLP. Lisa A. Watts represented the respondent. Judgment was entered on October 19, 2015.

Theory of causation field:
Kendy Sue Wilson alleged that an influenza vaccine administered on January 29, 2011, caused sensorineural hearing loss (SNHL) and tinnitus. Respondent opposed compensation, stating petitioner failed to provide preponderant evidence. The parties filed a joint stipulation for dismissal on September 28, 2015, with petitioner acknowledging inability to prove entitlement. Chief Special Master Nora Beth Dorsey dismissed the petition on September 29, 2015, for insufficient proof, noting the absence of a "Table Injury" and insufficient medical expert opinion to establish causation, despite both parties offering expert opinions. Petitioner was unable to retain an additional expert. Attorneys' fees and costs were awarded separately in the amount of $34,796.25, payable jointly to petitioner and counsel Maximillian J. Muller of Muller Brazil, LLP. Respondent's counsel was Lisa A. Watts. Judgment was entered October 19, 2015.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00866-0
Date issued/filed: 2015-10-20
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 09/29/2015) regarding 40 DECISION of Special Master Signed by Chief Special Master Nora Beth Dorsey. (tlf) Copy to parties.
--------------------------------------------------------------------------------
Case 1:13-vv-00866-UNJ Document 43 Filed 10/20/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 29, 2015
* * * * * * * * * * * * * * * * * * * * * * * * * UNPUBLISHED
KENDY SUE WILSON, * No. 13-866V
*
Petitioner, * Chief Special Master Dorsey
v. *
* Dismissal; Influenza (Flu) Vaccine;
SECRETARY OF HEALTH * Sensorineural Hearing Loss (SNHL);
AND HUMAN SERVICES, * Tinnitus
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Maximillian J. Muller, Muller Brazil, LLP, Philadelphia, PA for petitioner.
Lisa A. Watts, United States Department of Justice, Washington, DC for respondent.
DECISION1
On November 1, 2013, Kendy Sue Wilson (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine
Act”). Petitioner alleged that as a result of receiving an influenza (“flu”) vaccination on January
29, 2011, she suffered sensorineural hearing loss (“SNHL”) and tinnitus. Petition at ¶ 11.
Respondent filed her Rule 4 report on April 4, 2014, stating that this case was not
appropriate for compensation. Respondent stated that petitioner failed to provide preponderant
evidence in support of the petition for compensation, and compensation under the Act for
petitioner’s injuries must be denied.
On September 28, 2015, the parties filed a joint stipulation dismissing the petition. In the
motion, petitioner states that “[a]n investigation of the facts and science supporting the case have
demonstrated to petitioner that she will be unable to prove she is entitled to compensation in the
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the United States Court of Federal Claims' website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to delete medical or other information, that satisfies
the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, I will delete such material from public
access.
1

Case 1:13-vv-00866-UNJ Document 43 Filed 10/20/15 Page 2 of 2
Vaccine Program.” Motion for Dismissal at ¶ 1. Petitioner states that she understands that a
decision by the Special Master will result in a judgment against her, and that such a judgment
will end all rights in the Vaccine Program. Id. at ¶ 3.
To receive compensation under the Program, petitioner must prove either 1) that she
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to her vaccination, or 2) that she 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 the petitioner suffered a “Table Injury,” nor does petitioner allege that she suffered
a Table injury. While both parties have offered medical expert’s opinions on causation, the
record does not contain a medical expert’s opinion sufficient to indicate that petitioner’s injuries
were caused by a vaccination. Petitioner was unable to retain an additional expert to provide an
opinion in the case.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. 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 are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner, however, has not offered a persuasive medical expert opinion.
Therefore, the only alternative remains to DENY this petition. Thus, this case is
dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
2

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DOCUMENT 2: USCOURTS-cofc-1_13-vv-00866-1
Date issued/filed: 2015-11-12
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 10/21/2015) regarding 46 DECISION Fees Stipulation/Proffer Signed by Chief Special Master Nora Beth Dorsey. (tlf) Copy to parties.
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Case 1:13-vv-00866-UNJ Document 51 Filed 11/12/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-866V
Filed: October 21, 2015
* * * * * * * * * * * * * * * * UNPUBLISHED
KENDY SUE WILSON, *
* Chief Special Master Dorsey
Petitioner, *
* Attorneys’ Fees and Costs;
v. * Reasonable Amount Requested to
* which Respondent Does not Object
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * *
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Lisa A. Watts, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On November 1, 2013, Kendy Sue Wilson (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012).
Petitioner alleged that as a result of an influenza (“flu”) vaccine administered to her on January
29, 2011, she suffered sensorineural hearing loss (“SNHL”) and tinnitus. Petition at Preamble,
¶¶ 8, 11. On September 28, 2015, the parties filed a joint stipulation for dismissal, moving for a
decision dismissing the case, and a Decision dismissing the case in accordance with the parties’
stipulation for dismissal was issued September 28, 2015. Judgment was entered October 19,
2015.
1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 days
within which to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b).
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-
1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine
Act are to 42 U.S.C.A. § 300aa.
1

Case 1:13-vv-00866-UNJ Document 51 Filed 11/12/15 Page 2 of 2
On October 20, 2015, the parties filed a Stipulation of Fact Regarding Final Attorneys’
Fees and Costs. The parties stipulate to a total award of attorneys’ fees and costs of $34,796.25.
Stip. of Fact ¶ 2. Pursuant to General Order #9, petitioner’s counsel states that petitioner did not
advance any reimbursable costs in pursuit of this claim. Id. at ¶ 3.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300
aa-15(e). Based on the reasonableness of petitioner’s request and the lack of any objection by
respondent, the undersigned GRANTS the request for approval and payment of attorneys’ fees and
costs.
Accordingly, an award should be made as follows:
A lump sum of $34,796.25 in the form of a check payable jointly to petitioner and
petitioner’s counsel at Muller Brazil, LLP.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2