VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-01000
Package ID: USCOURTS-cofc-1_13-vv-01000
Petitioner: A.H.
Filed: 2013-12-17
Decided: 2016-02-22
Vaccine: hepatitis A, varicella
Vaccination date: 2011-05-25
Condition: Guillain-Barré syndrome
Outcome: compensated
Award amount USD: 75418.61

AI-assisted case summary:
On December 17, 2013, David and Theresa Herren, as grandparents and legal guardians of A.H., a minor, filed a petition for compensation under the National Vaccine Injury Program. The petition alleged that A.H. developed Guillain-Barré syndrome (GBS) after receiving hepatitis A and varicella vaccines on May 25, 2011. Respondent filed a motion to dismiss, arguing that the petition failed to state a claim because A.H. had not suffered residual effects for more than six months. Special Master Lisa D. Hamilton-Fieldman denied this motion on July 18, 2014. She found that, drawing inferences in favor of the petitioners, the record was sufficient at the pleading stage. A.H. experienced back and leg pain by July 27, 2011, and by July 30, 2011, was being treated for symptoms consistent with GBS. She remained under the care of neurologist Dr. Farber until January 31, 2012, which was more than eight months after vaccination. The decision also noted the assertion that A.H. continued to experience mild residual muscle pain, back aches, and headaches after her discharge from Dr. Farber's care, symptoms she did not have prior to GBS. The case later resolved by stipulation. The caption was amended so Theresa Herren proceeded as the sole petitioner. Respondent denied that A.H.'s GBS or any other injury was caused by the May 25, 2011 hepatitis A or varicella vaccines and denied that she experienced residual effects for more than six months. Nevertheless, the parties agreed that compensation should be awarded. On February 22, 2016, Special Master Hamilton-Fieldman found the stipulation reasonable and adopted it as the court's decision. The award included $418.61 payable jointly to petitioner and Humana CareSource for the Kentucky Medicaid lien. An additional $75,000.00 was payable to Theresa Herren as guardian or conservator of A.H.'s estate. The total lump-sum award was $75,418.61. Petitioner was represented in the damages decision by Ronald Craig Homer of Conway, Homer & Chin-Caplan, P.C.

Theory of causation field:
Petitioners alleged that minor A.H. received hepatitis A and varicella vaccines on May 25, 2011, and subsequently developed Guillain-Barré syndrome (GBS). Respondent denied causation and that A.H. experienced residual effects for more than six months. Special Master Lisa D. Hamilton-Fieldman denied respondent's motion to dismiss on July 18, 2014, finding that A.H. experienced residual effects for more than six months, as she had back and leg pain by July 27, 2011, was treated by July 30, 2011, and remained under neurologist Dr. Farber's care until January 31, 2012, over eight months post-vaccination. Petitioners also asserted that A.H. continued to experience residual muscle pain, back aches, and headaches after discharge. The case was resolved by stipulation on February 22, 2016. Respondent denied causation but stipulated to damages. The award was $75,000.00 to Theresa Herren as guardian/conservator of A.H.'s estate, plus $418.61 for the Kentucky Medicaid lien, totaling $75,418.61. Petitioner's attorney was Ronald Craig Homer.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-01000-0
Date issued/filed: 2014-08-08
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 07/18/2014) regarding 15 DECISION of Special Master Signed by Special Master Lisa Hamilton-Fieldman. (dlb) Copy to parties.
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Case 1:13-vv-01000-UNJ Document 16 Filed 08/08/14 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-1000V
Filed: July 18, 2014
* * * * * * * * * * * * * * * * * PUBLISHED
DAVID HERREN and THERESA HERREN, *
Grandparents and Legal Guardians of A.H., *
a minor, *
* Special Master
Petitioners, * Hamilton-Fieldman
*
v. *
* Dismissal Decision; RCFC 12(b) (6);
SECRETARY OF HEALTH * Hepatitis A, Varicella Vaccines.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * *
Meredith Daniels, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioners.
Heather L. Pearlman, United States Department of Justice, Washington, DC, for Respondent.
DECISION DENYING RESPONDENT’S MOTION TO DISMISS1
On December 17, 2013, David and Theresa Herren (“Petitioners”) filed a petition on
behalf of their granddaughter, A.H., for compensation under the National Vaccine Injury
Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act” or “Program”), alleging that she
developed Guillain-Barré syndrome (“GBS”) as a result of the administration of hepatitis A
1 Because this published decision contains a reasoned explanation for the action in the
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)). As provided by
Vaccine Rule 18(b), each party has 14 days within which to file a motion for redaction “of any
information furnished by that party (1) that is trade secret or commercial or financial information
and is privileged or confidential, or (2) that are medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). In the
absence of such motion, the entire decision will be available to the public. Id.
2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42. U.S.C. § 300aa (2006).
1

Case 1:13-vv-01000-UNJ Document 16 Filed 08/08/14 Page 2 of 5
(“Hep A”) and varicella vaccinations on May 25, 2011. Petition (“Pet.”) at 1, ECF No. 1. After
a review of the petition and supporting documents, Respondent filed a Motion to Dismiss
(“MTD”), asserting that Petitioners did not establish that A.H. suffered from her injury for more
than six months. Resp’t’s Report and Motion to Dismiss, ECF No. 10. Therefore, Respondent
argues, the claim must be dismissed for failure to state a claim upon which relief may be granted.
For the reasons stated herein, Respondent’s Motion is DENIED.
I
APPLICABLE LEGAL STANDARD
Pursuant to RCFC 12(b)(6), the court may dismiss a petition for failure to state a claim.
Bass v. Sec'y of Health & Human Servs., 12-135V, 2012 WL 3031505, at *5 (Fed. Cl. Spec.
Mstr. June 22, 2012). To properly state a claim, the petitioner must provide “a short and plain
statement of the claim, which shows that the petitioner is entitled to relief.” Totes–Isotoner
Corp. v. United States, 594 F.3d 1346, 1354 (Fed. Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A complaint does not need detailed factual allegations, but
“factual allegations must be enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp., 550 U.S. at 555.
Rules of the United States Court of Federal Claims (RCFC) and the Federal Rules of
Civil Procedure (FRCP) are nearly identical, with Rule 12(b)(6) worded the same as the Federal
Rules.3 The United States Supreme Court has interpreted Rule 12(b)(6) as requiring a plaintiff to
present “[f]actual allegations ... [that] raise a right to relief above the speculative level.” In
emphasizing the need to plead “facts,” the Supreme Court has rejected a “formulaic recitation of
the elements of a cause of action.” Bell Atlantic Corp., 550 U.S. at 545.
Although the Vaccine Rules do not directly include Rule 12(b)(6), special masters have
entertained motions based upon Rule 12(b)(6) because the standards for pleadings in the Vaccine
Program are similar to the standards for pleadings in traditional civil litigation.4 See Warfle v.
3 Both FRCP and RCFC Rule 12(b)(6) state: “Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. But a party may assert
the following defenses by motion: … (6) failure to state a claim upon which relief can be granted
….”
4 Vaccine Rule 8(d) lays out guidance for when a Special Master should apply procedures
set forth in RCFC: “The special master may decide a case on the basis of written submissions
without conducting an evidentiary hearing. Submissions may include a motion for summary
judgment, in which event the procedures set forth in RCFC 56 will apply.” With respect to this
case, RCFC 12(b)(6) applies because the undersigned is ruling on a Motion to Dismiss and not a
Motion for Summary Judgment.
2

Case 1:13-vv-01000-UNJ Document 16 Filed 08/08/14 Page 3 of 5
Sec'y of Health & Human Servs., 05-1399V, 2007 WL 760508 (Fed. Cl. Spec. Mstr. Feb. 22,
2007) (holding that in ruling on a Motion to Dismiss, the court must draw every inference
concerning disputed facts in favor of the nonmoving party); Guilliams v. Sec'y of Health &
Human Servs., No. 11–716V, 2012 WL 1145003, at *9, *10 (Fed. Cl. Spec. Mstr. Mar. 14,
2012); Richard v. Sec'y of Health & Human Servs., No. 02–877V, 2010 WL 2766742, at *4, *5
(Fed. Cl. Spec. Mstr. May 3, 2010).
In Warfle, the special master considered a motion to dismiss for failure to state a claim, in
which the respondent argued that the petitioner had failed to offer sufficient evidence concerning
one of the requirements of § 300aa-11(c)(1)(D)(i). Warfle, 2007 WL 760508, at *2. The special
master concluded that in evaluating that motion, he need only assess whether the petitioner could
meet the Act’s requirements and prevail, drawing all inferences from the available evidence in
petitioner’s favor. Id. In that case, he found that on the basis of various documents submitted, a
reasonable fact-finder could conceivably rule in petitioner’s favor, so petitioner’s case survived
the dismissal motion. Id.
II
ANALYSIS
In her Motion to Dismiss, Respondent correctly cites to the statutory requirement under
42 U.S.C. § 300aa-11(c)(1)(D)(i), that residual effects of an alleged vaccine-related injury must
last for more than six months. Resp’t’s Motion to Dismiss at 5, ECF No. 10. Here, Petitioners
allege that A.H.’s injuries were caused by the hepatitis A and varicella vaccinations she received
on May 25, 2011. Pet. at 1-3. Petitioners allege that A.H. experienced the residual effects of her
vaccine injury for more than six months. Pet’rs’ Response to Resp’t’s Motion to Dismiss at 2, 4,
ECF No. 11. Petitioners argue that the injuries to A.H. meet the six-month threshold
requirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i); they assert that “[t]he Act does not state
that these symptoms must be documented in medical records.” Pet’rs’ Response to Resp’t’s
Motion to Dismiss (“Response”) at 4, ECF No. 11. Petitioners argue that the record as a whole
supports a finding that A.H.’s symptoms continued for more than six months. Id. In fact,
Petitioners argue that A.H. continues to experience symptoms related to her GBS, including
muscle aches and back aches. Id.
The Vaccine Act states in pertinent part that the petitioner must have: “(i) suffered the
residual effects or complications of such illness, disability, injury, or condition for more than 6
months after the administration of the vaccine, or (ii) died from the administration of the
vaccine, or (iii) suffered such illness, disability, injury, or condition from the vaccine which
resulted in inpatient hospitalization and surgical intervention.” 42 U.S.C. § 300aa-
11(c)(1)(D)(i)-(iii) (emphasis added). While both parties in this case offered evidentiary
arguments concerning the onset of A.H.’s symptoms, the date of symptom onset is not relevant
to the 6 month residual effect inquiry; A.H’s “6 months” runs from May 25, 2011, the date of her
vaccinations. Pet’rs’ Ex. 7 at 1. See, e.g., Gerami v. Sec’y of Health & Human Servs., 2013 WL
5998109, at *3 (Fed. Cl. Sp. Mstr. Oct. 11, 2013) (“Under the Vaccine Act, the residual effects
of such injuries must have persisted beyond May 27, 2012, six months after Ms. Gerami’s
3

Case 1:13-vv-01000-UNJ Document 16 Filed 08/08/14 Page 4 of 5
November 27, 2011 vaccination.”), aff’d, No. 12-442, slip op. at 6-10 (Fed. Cl. Mar. 31, 2014).
In this case, six months following vaccination is November 25, 2011.
A.H. experienced back and leg pain on July 27, 2011, during a visit to her aunt and uncle.
Pet’rs’ Ex. 13 at 1. By July 30, 2011, A.H. was in such pain that she cut her visit short, and her
grandmother had to pick her up and bring her home. Id. at 2. Petitioners further aver that A.H.’s
pain continued, and by August 4, 2011, she was experiencing weakness in her legs and was
falling; she said she felt like her knees were bending when she did not want them to. Id. A.H.
presented to the ER two days later, on August 6, 2011 and was diagnosed with GBS. Pet’rs’ Ex.
3 at 4-11. She began treatment with IVIG and Neurontin on August 7, 2011.5 Pet’rs’ Ex. 3 at
39-40. A.H. responded well to her treatment, and was discharged from the hospital on August 9,
2011. Pet’rs’ Ex. 3 at 2-3. She began outpatient physical therapy and after eight weeks was
discharged from physical therapy. Pet’rs’ Ex. 12 at 43-44. On September 28, 2011, A.H. saw
Dr. Farber, her treating neurologist. Pet’rs’ Ex. 5 at 1-3. During this visit, Dr. Farber noted that
“at times, [A.H.] can be a bit more fatigued than she has been in the past.” Pet’rs’ Ex. 5 at 1. Dr.
Farber also reported that A.H. is still “areflexive.” Id. at 1-2. At that time, Dr. Farber “told
A.H.’s parents that she may return to school, as she has been homebound since discharge.” Id. at
3. Dr. Farber also noted he would “see her back for follow-up in 4 months’ time” and that “[i]f
she continues to do well, [he] will discharge her at that time.” Id. A.H. returned to Dr. Farber on
January 31, 2012, and she was reported to be doing well since her last visit in September 2011,
without any motor concerns. Pet’rs’ Ex. 8 at 1-3. Her balance, strength, and coordination were
normal; her reflexes had returned; and her physical examination revealed normal gait, reflexes,
and tone. Id. There were no “additional issues to report,” and Dr. Farber discharged A.H. from
his neurology practice. Id.
Respondent argues that “[s]imply because A.H. saw Dr. Farber on January 31, 2012, does
not mean that she still suffered residual effects from her GBS on that date.” Resp’t’s Response
to Order at 3, ECF No. 13. However, A.H. was still clearly suffering residual effects four
months post-vaccine; Dr. Farber did not deem her sufficiently recovered to discharge her at that
time, and directed Petitioners to “follow up in 4 months’ time.” Pet’rs’ Ex. 5 at 3.
On a motion to dismiss, the undersigned must construe the facts in the light most
favorable to the nonmoving party (here, Petitioners). See Nelson Const. Co. v. United States, 79
Fed. Cl. 81, 85 (Fed. Cl. Oct. 29, 2007). Under that standard, the undersigned concludes that
A.H. was actively treating for her allegedly vaccine-caused injury through the date of discharge
5 Section 11(c)(1)(D) presents two alternative grounds for eligibility to compensation if a
petitioner does not meet the six months threshold. The first alternative is death from the vaccine.
The second alternative is inpatient hospitalization and surgical intervention. Respondent states
in her motion to dismiss that “[a]lthough [A.H.] was admitted to Kosair for her symptoms, her
condition did not require surgical intervention.” Resp’t’s Response to Order at 2, ECF No. 13.
The statutory requirement of surgical intervention is only necessary when used as an alternative
pleading ground for meeting the six months threshold. Here, the six months threshold is
satisfied. Therefore, for purposes of Respondent’s Motion to Dismiss, it is not necessary for the
undersigned to determine whether a lumbar puncture and IVIG are surgical interventions that
satisfy the Act’s severity requirement.
4

Case 1:13-vv-01000-UNJ Document 16 Filed 08/08/14 Page 5 of 5
from Dr. Farber’s care on January 31, 2012, over eight months after her May 25, 2011
vaccination.
Furthermore, a discharge from medical care does not necessarily indicate there are no
residual effects. A.H. continued to experience mild residual muscle pain and back aches as a
result of her GBS, even after her discharge from Dr. Farber’s care. Pet’rs’ Ex. 13 at 3. As
Petitioners explain, muscle pain and back aches are common sequelae following GBS. Pet’rs’
Response to Resp’t’s Motion to Dimiss at 3. These are residual symptoms which, due to their
mild nature, do not require medical care. Id. at 3. Petitioners add that they do not contest that
A.H. has made a significant recovery; however, she still has “headaches, muscle and back aches
that she did not have prior to her GBS.” Pet’rs’ Ex. 13 at 3.
The undersigned finds the residual effects of vaccine-caused injuries persisted at least six
months after the petitioner’s vaccination date because A.H. was still under the medical care of
her neurologist until January 31, 2012. These facts, combined with the post-vaccinal records of
August 2011, provide a set of circumstances which, if proven in a hearing and connected to a
medical or scientific theory of causation, could allow Petitioners to prevail on the merits. This is
all that is necessary for Petitioners to clear the relatively low hurdle presented by a motion to
dismiss.
III
CONCLUSION
Based on the record as a whole, Petitioners have demonstrated that A.H. experienced the
residual effects of her alleged vaccine-related injury for at least six months as outlined in the
Vaccine Act. Therefore Respondent’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
/s/ Lisa D. Hamilton-Fieldman
Lisa D. Hamilton-Fieldman
Special Master
5

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DOCUMENT 2: USCOURTS-cofc-1_13-vv-01000-1
Date issued/filed: 2016-03-14
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 2/22/2016) regarding 40 DECISION Stipulation/Proffer. Signed by Special Master Lisa Hamilton-Fieldman. (mb) Copy to parties.
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Case 1:13-vv-01000-UNJ Document 44 Filed 03/14/16 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-1000V
Filed: February 22, 2016
* * * * * * * * * * * * * * * * UNPUBLISHED
THERESA HERREN, grandparent and *
legal guardian of A.H., a minor, *
* Special Master Hamilton-Fieldman
Petitioner, *
* Joint Stipulation on Damages;
v. * Hepatitis A (“Hep A”) Vaccine;
* Varicella Vaccine; Guillain-Barré
SECRETARY OF HEALTH * syndrome (“GBS”).
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * *
Ronald Craig Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner.
Heather Pearlman, United States Department of Justice, Washington, D.C., for Respondent.
DECISION1
On December 17, 2013, David and Theresa Herren2 filed a petition for compensation on
behalf of their granddaughter, A.H., pursuant to the National Vaccine Injury Compensation
Program.3 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged that the administration of
Hepatitis A (“Hep A”) and Varicella vaccines on May 25, 2011 caused A.H. to suffer from
1 Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision 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 caption of Mr. and Mrs. Herren’s petition was subsequently amended to reflect Theresa
Herren (“Petitioner”) as the sole petitioner. See Order, filed March 11, 2015, at 1.
3 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 (2006) (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-01000-UNJ Document 44 Filed 03/14/16 Page 2 of 8
Guillian-Barré syndrome (“GBS”).
On February 19, 2016, the parties filed a stipulation in which they state that a decision
should be entered awarding compensation. Respondent denies that A.H.’s GBS or any other
injury was caused-in-fact by her May 25, 2011 varicella and Hep A vaccinations, and further
denies that A.H. experienced residual effects of this injury for more than six months. However,
the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds
the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the
terms set forth therein.
The parties stipulate that Petitioner shall receive the following compensation:
a. A lump sum payment of $418.61, representing compensation for full satisfaction
of the State of Kentucky Medicaid lien, in the form of a check payable jointly to
Petitioner and:
Humana CareSource
230 N. Main Street
Dayton, Ohio 45402
Attn: Legal Department
Petitioner agrees to endorse this payment to Humana CareSource; and
b. A lump sum payment of $75,000.00, in the form of a check payable to Petitioner,
Theresa Herren, as guardian/ conservator of A.H.’s estate. 42 U.S.C. § 300aa-
15(a)(1)(B). This amount represents compensation for all damages that would
be available under 42 U.S.C. § 300aa-15(a).
Stipulation ¶ 8.
The undersigned approves the requested amount for Petitioner’s compensation.
Accordingly, an award should be made consistent with the stipulation.
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.4
IT IS SO ORDERED.
s/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
4 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

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