Elmer Graham v. HHS - Influenza, intractable seizures, limbic encephalopathy, respiratory failure, and death (2015)

Elmer Graham, as parent and natural guardian of G.G.G., a minor child, filed a petition on January 22, 2014, alleging that a FluMist influenza vaccine administered on October 15, 2012, caused G.G.G. to suffer intractable seizures, limbic encephalopathy, respiratory failure, and ultimately death. Approximately one month after vaccination, G.G.G. began experiencing symptoms, including discomfort during urination and lower back pain, leading to a diagnosis of a urinary tract infection.

Subsequent visits for similar symptoms resulted in further antibiotic prescriptions. On November 23, 2012, G.G.G. exhibited seizure-like activity and was hospitalized, eventually being airlifted to Arkansas Children's Hospital.

G.G.G. was diagnosed with intractable seizures, limbic encephalopathy of unknown etiology, and respiratory failure. An autopsy on December 17, 2012, attributed G.G.G.'s death to Hashimoto's encephalopathy, complicated by status epilepticus and respiratory failure.

Dr. Mark Heulitt's death certificate on January 4, 2013, cited respiratory failure as a consequence of status epilepticus.

The respondent, the Secretary of Health and Human Services, argued that the alleged injuries were not "Table Injuries" and that the petitioner failed to prove causation-in-fact, noting that none of G.G.G.'s treating providers suggested a causal link to the vaccine. The respondent also pointed to alternative causes, such as Hashimoto's encephalopathy or viral encephalitis.

The petitioner's own expert, Dr. Douglas Miller, a neuropathologist, reviewed the autopsy slides and concluded that G.G.G. died of complications of Hashimoto's Encephalopathy, not the vaccine.

Based on Dr. Miller's assessment, the petitioner moved to dismiss his own case, stating that proceeding further would be unreasonable.

Special Master Christian J. Moran dismissed the case on September 24, 2014, finding insufficient proof of causation, as neither the medical records nor Dr.

Miller's opinion supported a causal connection between the vaccine and the injury. Subsequently, the petitioner sought attorneys' fees and costs.

On August 4, 2015, Special Master Moran denied the request, finding that the claim lacked a "reasonable basis." The Special Master considered the "totality of the circumstances," including the attorney's pre-filing investigation, and concluded there was no basis for the claim. Petitioner sought review of this decision.

On December 18, 2015, Judge Susan G. Braden affirmed the Special Master's denial of attorneys' fees and costs, finding that the Special Master did not abuse his discretion in determining that the claim had no reasonable basis.

The court affirmed the denial of fees and costs, finding no abuse of discretion by the Special Master. Petitioner counsel was Anne C.

Toale and Jennifer Anne Gore Maglio. Respondent counsel was Tara J.

Kilfoyle and Amy Paula Kokot. Special Master was Christian J.

Moran. Judge was Susan G.

Braden.