VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-00120 Package ID: USCOURTS-cofc-1_14-vv-00120 Petitioner: Kevin Koen Filed: 2015-06-03 Decided: 2015-07-28 Vaccine: influenza Vaccination date: Condition: Transverse Myelitis and Multiple Sclerosis Outcome: dismissed Award amount USD: AI-assisted case summary: Kevin Koen filed a petition on February 11, 2014, seeking compensation under the National Vaccine Injury Compensation Program. Mr. Koen alleged that he received an influenza vaccine in late 2010 and subsequently developed Transverse Myelitis and Multiple Sclerosis, which he claimed were caused or exacerbated by the vaccination. Petitioner's counsel was Howard Gold of Gold Law Firm, LLC. Respondent's counsel was Althea Davis from the U.S. Department of Justice. Despite efforts throughout 2014, Mr. Koen was unable to establish proof of vaccination, which is a prerequisite for any claim under the Vaccine Program. During a status conference on March 16, 2015, the Special Master, Brian H. Corcoran, granted Mr. Koen a final opportunity to present evidence of vaccination and supporting case law. However, Mr. Koen subsequently filed an unopposed motion to dismiss his case on March 31, 2015, stating he could not provide additional testimony or documentation to support evidence of vaccination in December 2010. The public decision does not describe the onset of symptoms, specific medical tests, or treatments. Special Master Corcoran issued a decision on March 31, 2015, dismissing the case for insufficient proof, noting that a petitioner must prove receipt of a covered vaccination, and Mr. Koen's petition lacked sufficient persuasive evidence on this threshold issue. He further stated that claims cannot be based solely on the petitioner's assertions and require supporting medical records or a physician's opinion, neither of which were sufficiently present in the record for the vaccination itself. On July 28, 2015, Special Master Corcoran issued a decision regarding a stipulation for attorney's fees and costs. The parties had filed a stipulation on June 2, 2015, wherein Petitioner requested reimbursement of $8,291.15 in attorney's fees and costs, an amount to which the Respondent did not object. Petitioner's counsel represented that Mr. Koen had not personally incurred any expenses. Special Master Corcoran approved the requested amount as reasonable and ordered that judgment be entered in accordance with the stipulation, with the award check payable jointly to Kevin Koen and his counsel, Howard S. Gold, Esquire. This award represented all attorney's fees and costs available under 42 U.S.C. § 300aa-15(e). Theory of causation field: Petitioner Kevin Koen filed a petition on February 11, 2014, alleging that an influenza vaccine administered in late 2010 caused or exacerbated Transverse Myelitis and Multiple Sclerosis. The public decision does not describe the specific vaccine manufacturer, lot number, or exact date of vaccination, nor does it detail the mechanism of injury or any expert testimony presented. The case was dismissed because Petitioner failed to meet the threshold burden of proving that he received a covered vaccination, as required by 42 U.S.C. § 300aa-11(c)(1)(A). Petitioner was unable to provide sufficient proof of vaccination despite efforts and a final opportunity granted by Special Master Brian H. Corcoran. Consequently, the petition was dismissed for insufficient proof on March 31, 2015. Subsequently, on July 28, 2015, Special Master Corcoran approved a stipulation for attorney's fees and costs, awarding $8,291.15 jointly to Petitioner and his counsel, Howard Gold, payable to Petitioner and Petitioner's counsel, Howard S. Gold, Esquire. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_14-vv-00120-0 Date issued/filed: 2015-07-28 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 06/03/2015) Regarding 28 DECISION Fees Stipulation Signed by Special Master Brian H. Corcoran. (ay) Copy to parties. -------------------------------------------------------------------------------- Case 1:14-vv-00120-UNJ Document 32 Filed 07/28/15 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-120V * * * * * * * * * * * * * * * * * * * * * * * * * KEVIN KOEN, * * * Filed: June 3, 2015 Petitioner, * * v. * Decision by Stipulation; Attorney’s Fees * and Costs * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Howard Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for Petitioner. Althea Davis, U.S. Dep’t of Justice, Washington, DC, for Respondent. ATTORNEY’S FEES AND COSTS DECISION1 On February 11, 2014, Kevin Koen filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Despite his best efforts, Petitioner was unable to establish proof of vaccination. Therefore, Petitioner filed a motion seeking dismissal of this case on March 31, 2015. Pet’r’s Unopposed Mot. for a Dismissal Decision at 1 (ECF No. 24). I subsequently issued a decision dismissing this case for insufficient proof. Decision Dismissing Case, dated Mar. 31, 2015 (ECF No. 25). 1 Because this decision contains a reasoned explanation for my action in this case, it will be posted 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 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has fourteen (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). Otherwise, the decision will be available to the public. Id. 2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to § 300aa of the Act. Case 1:14-vv-00120-UNJ Document 32 Filed 07/28/15 Page 2 of 2 On June 2, 2015, the parties filed a stipulation regarding attorney’s fees and costs. ECF No. 27. Petitioner requests reimbursement of attorney’s fees and costs in the amount of $8,291.15. Id. This amount represents a sum to which Respondent does not object. Id. In addition, and in compliance with General Order No. 9, Petitioner’s counsel represents that Petitioner has not personally incurred any expenses in litigating this case. Id. I approve the requested amount for attorney’s fees and costs as reasonable. Accordingly, an award of $8,291.15 should be made in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Howard S. Gold, Esquire. Payment of this amounts represents all attorney’s fees and costs available under 42 U.S.C. § 300aa-15(e). 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/ Brian H. Corcoran Brian H. Corcoran Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_14-vv-00120-1 Date issued/filed: 2015-07-28 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 03/31/2015) Regarding 25 DECISION of Special Master (Signed by Special Master Brian H. Corcoran). (ay) Copy to parties. -------------------------------------------------------------------------------- Case 1:14-vv-00120-UNJ Document 33 Filed 07/28/15 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-120 (Not to be published) * * * * * * * * * * * * * * * * * * * * * * * * * KEVIN KOEN, * Filed: March 31, 2015 * Petitioner, * v. * * Petitioner’s Motion for a Decision SECRETARY OF HEALTH * Dismissing the Petition; Vaccine Act AND HUMAN SERVICES, * Entitlement; Denial Without Hearing * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Howard Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for Petitioner. Althea Davis, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION DISMISSING CASE1 On February 11, 2014, Kevin Koen filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleged that he was administered the influenza vaccine in late 2010 and thereafter suffered Transverse Myelitis and Multiple Sclerosis, both of which were caused and/or exacerbated by the vaccination. See Petition at 1 (ECF No. 1). Despite his best efforts in 2014, Petitioner was unable to establish proof of vaccination. During a status conference in this case that was held on March 16, 2015, Petitioner’s progress in obtaining proof of vaccination was discussed, and I agreed to provide him with a final opportunity 1 Because this decision contains a reasoned explanation for my action in this case, it will be posted 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 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has fourteen (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). Otherwise, the decision will be available to the public. Id. 2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to § 300aa of the Act. Case 1:14-vv-00120-UNJ Document 33 Filed 07/28/15 Page 2 of 2 to marshal all such evidence, along with any relevant case law in support of his claim. Order at 1 (ECF No. 23). Petitioner has now filed a motion seeking dismissal of this case. Pet’r’s Unopposed Mot. for a Dismissal Decision at 1 (ECF No. 24). In that motion, Petitioner indicates that he cannot provide additional testimony or documentation supporting evidence of vaccination in December 2010. Id. Petitioner also represented that Respondent expressed no opposition to the motion. Id. To receive compensation under the Vaccine Program, a petitioner has the threshold burden of proving that he received a covered vaccination. § 11(c)(1)(A). An examination of the record, however, does not uncover sufficient persuasive evidence regarding Petitioner’s receipt of the flu vaccination. Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely on his claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. §13(a)(1). In this case, there is insufficient evidence in the record for Petitioner to meet his burden of proof on the threshold issue of proof of vaccination. Petitioner’s claim therefore cannot succeed and must be dismissed. §11(c)(1)(A). Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 2