VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-00762
Package ID: USCOURTS-cofc-1_14-vv-00762
Petitioner: Kristina Garrison
Filed: 2015-11-23
Decided: 2018-04-04
Vaccine: trivalent influenza
Vaccination date: 2011-11-09
Condition: narcolepsy with cataplexy
Outcome: compensated
Award amount USD: 1017346

AI-assisted case summary:
Kristina Garrison, a 38-year-old adult, filed a petition on August 22, 2014, alleging that a trivalent influenza vaccine administered on November 9, 2011, caused her to develop narcolepsy with cataplexy. Ms. Garrison reported experiencing excessive daytime sleepiness in mid-November 2011, followed by episodes of falling asleep and sudden collapses triggered by emotion in early December 2011. Her condition progressed, leading to further sleepiness, inability to concentrate, and more frequent collapses. She sought treatment from various physicians, including Dr. Dan Nofzinger, who diagnosed her with narcolepsy and prescribed medication. Later, Dr. Richard Hammond confirmed the diagnosis of narcolepsy with cataplexy and adjusted her treatment. In November 2013, she was treated by Dr. Emmanuel Mignot, a sleep specialist, who noted her symptoms and recommended Xyrem. Dr. Mignot informed Ms. Garrison that individuals with a specific genetic susceptibility, like her HLA DQB1*0602 marker, could experience an autoimmune reaction after an H1N1 vaccination, leading to the destruction of hypocretin-producing neurons and resulting in narcolepsy and cataplexy. The respondent initially contested causation but later agreed not to contest entitlement, acknowledging Ms. Garrison's diagnosis. On October 29, 2015, Special Master Thomas L. Gowen ruled that Ms. Garrison was entitled to compensation, finding that she had established causation in fact based on a medical theory connecting the H1N1 component of the flu vaccine to an autoimmune reaction leading to narcolepsy in susceptible individuals. The case then proceeded to the damages phase. On April 4, 2018, Special Master Gowen issued a decision on damages, awarding Ms. Garrison a total of $1,017,346.24. This lump sum included $757,886.00 for lost past and future earnings, $220,973.00 for pain and suffering, $19,450.24 for past unreimbursable expenses, and $19,037.00 for first-year life care expenses. Additionally, an amount sufficient to purchase an annuity for future life care expenses was to be paid. The petition was originally filed on August 22, 2014, and the final decision on damages was issued on April 4, 2018. Petitioner was represented by Curtis R. Webb, and respondent was represented by Ryan D. Pyles.

Theory of causation field:
Kristina Garrison, age 38, received a trivalent influenza vaccine on November 9, 2011. She developed narcolepsy with cataplexy, with symptoms beginning approximately two weeks post-vaccination. Petitioner alleged the flu vaccine caused her condition. Respondent initially contested causation but later agreed not to contest entitlement. Special Master Thomas L. Gowen found entitlement based on causation in fact, concluding that the H1N1 component of the flu vaccine could trigger an autoimmune reaction in genetically susceptible individuals (Petitioner tested positive for HLA DQB1*0602), leading to the destruction of hypocretin-producing neurons and resulting in narcolepsy and cataplexy. This theory was supported by expert opinion from Dr. Marcel Kinsbourne and medical literature, including epidemiological studies showing an increased prevalence of narcolepsy following H1N1 vaccination. The Special Master found a logical sequence of cause and effect and a proximate temporal relationship between the vaccination and the onset of symptoms. On April 4, 2018, Ms. Garrison was awarded $1,017,346.24 in a lump sum for lost earnings, pain and suffering, and past expenses, plus an amount for a future life care annuity. Petitioner's counsel was Curtis R. Webb; respondent's counsel was Ryan D. Pyles. Special Master Gowen issued the entitlement ruling on October 29, 2015, and the damages decision on April 4, 2018.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-00762-0
Date issued/filed: 2015-11-23
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 10/29/2015) regarding 23 Ruling on Entitlement ( Signed by Special Master Thomas L. Gowen.)(mpj) Copy to parties.
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Case 1:14-vv-00762-EDK Document 25 Filed 11/23/15 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-762V
Filed: October 29, 2015
(Not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
KRISTINA GARRISON, *
*
Petitioner, * Ruling on Record; Trivalent Influenza
v. * Vaccine; Narcolepsy; Cataplexy;
* Hypocretin.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * * * * * *
Curtis R. Webb, Twin Falls, ID, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC for respondent.
RULING ON ENTITLEMENT1
Gowen, Special Master:
On August 22, 2014, Kristina Garrison (“petitioner” or “Ms. Garrison”) filed a petition
pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 et seq. (2006)
(“Vaccine Act”). Petitioner alleges that as a result of receiving a trivalent influenza (“flu”)
vaccination on October 28, 2011, she developed narcolepsy and cataplexy. See Petition at ¶ 1, 2,
docket no. 1, filed Aug. 22, 2014. Petitioner also alleges that she has, and will continue to suffer,
effects of her narcolepsy and cataplexy. Id. at ¶ 16. In support of her petition, petitioner filed
several medical records; treatment records and medical literature from a narcolepsy expert, Dr.
Emmanuel Mignot; an expert opinion from Dr. Marcel Kinsborne; and several pieces of medical
literature in support of causation.
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 and note (2006)). In accordance with Vaccine
Rule 18(b), a party 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, the undersigned agrees
that the identified material fits within the requirements of that provision, such material will be
deleted from public access.
1

Case 1:14-vv-00762-EDK Document 25 Filed 11/23/15 Page 2 of 10
On August 2, 2015, respondent filed a Rule 4(c) Report and a motion for a ruling on the
record, stating that while she “agrees that petitioner’s appropriate diagnosis is narcolepsy with
cataplexy,” she “concludes that there is insufficient scientific evidence to support a causal
relationship between the influenza vaccine and narcolepsy (with or without cataplexy).”
Respondent’s Report (“Res. Report”) at 4, docket no. 21, filed Apr. 2, 2015. Nevertheless,
although she recommends against compensation in this case, she “will not expend further resources
to contest entitlement in this matter.” Id. Respondent moved for a decision on entitlement based
on the record. Id.
Based on a review of the entire record, the undersigned finds that petitioner is entitled to
compensation.
I. BACKGROUND
A. Procedural History
Along with the petition, petitioner filed twenty-seven exhibits of medical records, an
affidavit, and medical literature in support of her petition. See Petitioner’s Exhibits (“Pet. Ex(s).”)
1-27. An initial status conference was held on September 17, 2014, after which petitioner was
ordered to file a Statement of Completion and an expert report addressing the Althen2 factors. See
Order, docket no. 12, filed Sept. 23, 2015. Petitioner filed a Statement of Completion on September
29, 2014. On February 2, 2015, petitioner filed an expert report by Dr. Marcel Kinsbourne and
several additional exhibits of medical literature. See Pet. Ex. 28-50. Thereafter, respondent was
ordered to file a responsive expert report and Rule 4(c) report by April 3, 2015. On April 2, 2015,
respondent filed a Rule 4(c) Report indicating that she did not intend to defend this case, and so
moved for a ruling on the record. Res. Repot at 4. Respondent did not file a responsive expert
report. This matter is now ripe for a decision.
B. Factual History
Petitioner received a flu vaccination at thirty-eight years old on November 9, 2011.3 Pet.
Ex. 4 at 2-3. At that time, petitioner was employed as a Branch Manager at U.S. Bank in Buhl,
Idaho, and was married with four children. Pet. Ex. 1 at ¶ 2. In mid-November 2011 petitioner
began experiencing excessive daytime sleepiness. Id. at ¶ 5. She noted in her affidavit that around
this time, she would become sleepy while interviewing candidates for positions at the bank. Id. In
early December 2011, she experienced her first episode of suddenly falling asleep. She fell asleep
on the toilet in a bathroom at work. Id. at ¶ 7. When she roused from that episode, she could not
remember falling asleep. Id. Also in December 2011, she began to experience sudden collapses,
triggered by any strong emotion, which was often stress. Id. at ¶ 8.
A week prior to January 25, 2012, petitioner called her primary care doctor, Dr. Jennifer
Preucil, reporting fatigue and feeling “like she was crashing over the last 3 months.” Pet. Ex. 5 at
2 Althen v. Sec=y, HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005).
3 The petition alleges receipt of the flu vaccine on October 28, 2011, however, the medical records
indicate that she signed a consent form on that date, and received the vaccine on November 9,
2011.
2

Case 1:14-vv-00762-EDK Document 25 Filed 11/23/15 Page 3 of 10
19. Dr. Preucil ordered lab testing. Id. At the January 25, 2012 appointment with Dr. Preucil, the
doctor noted petitioner’s history of a uterine infection following a surgery in October 2010, and a
history of hypoglycemia. Id. Petitioner’s lab tests revealed elevated liver enzymes. She was
referred to a gastroenterologist. Pet. Ex. 5 at 20. Dr. Preucil’s records also noted that petitioner
reported a twenty pound weight gain as a result of not exercising due to her fatigue. Id. at 19.
Petitioner reported no depression or emotional distress. Id.
Petitioner visited gastroenterologist, Dr. Seth Wheeler, on March 12 and 19, 2012, for a
chronic history of elevated AST with a history of Hellp Syndrome4 with each pregnancy. Id. at 23.
Dr. Wheeler noted fatigue in his assessment of petitioner. Id. at 25. Dr. Wheeler noted that her
likely diagnosis was nonalcoholic steatohepatitis,5 as “this is the most common source of LFT
elevations when other etiologies [are] ruled out.” Id. at 28.
Petitioner’s excessive daytime fatigue and sleepiness continued and became progressively
severe in the subsequent months. Pet. Ex. 1 at ¶ 10. She would fall asleep at work, she could not
remember conversations she had, and she was unable to concentrate at work. Id. On May 17, 2012,
she sought treatment from Dr. Dan Nofzinger, who recommended a liver biopsy. Pet. Ex. 7 at 2.
Petitioner’s liver biopsy showed minimal chronic hepatitis. Pet. Ex. 5 at 53. On June 8, 2012, Dr.
Nofzinger ordered an EEG. Id. The EEG was unusual, so the doctor ordered a sleep study. Pet. Ex.
1 at ¶ 12. Based on the sleep study, Dr. Nofzinger diagnosed petitioner with narcolepsy and
prescribed her Provigil. Pet. Ex. 7 at 2-3. The doctor’s July 18, 2012 medical records noted that
due to petitioner’s episodes of falling asleep at work, she was required to take a leave of absence.
Id. at 2.
On September 21, 2012, Dr. Nofzinger noted that petitioner’s narcolepsy was not well
controlled with Provigil. Id. at 3. He documented that “within the last month she [] had episodes
of falling asleep[,] once while waiting on a customer and once while driving.” Id. On October 1,
2012, Dr. Nofzinger referred petitioner to neurologist, Dr. Richard Hammond. Id. Petitioner visited
Dr. Hammond on December 27, 2012, who noted that petitioner experienced decreased awareness
since December 2011. Pet. Ex. 5 at 3. Petitioner reported to Dr. Hammond that her narcolepsy
“was usually preceded by a very odd sensation that would come up the back of her neck,” followed
by lessened awareness. Id. She reported that if she could take a ten to twenty minute nap while at
work during the day, it would enable her to be alert for hours afterwards. Id. She also reported that
she could sleep up to fifteen hours a day. Id. Additionally, there were episodes where she would
fall to ground but would not fall asleep, “her knees would just buckle and she would fall.” Id. She
preferred to treat her condition with regular napping, as her medications caused her terrible side
effects. Id. at 3, 5-6; Pet. Ex. 1 at ¶ 14-16. An MRI of her brain was normal. Pet. Ex. at 5. Dr.
Hammond confirmed her diagnosis of narcolepsy with cataplexy, prescribed Effexor for her
cataplexy, and Nuvigil for her narcolepsy. Id. at 5-6, 8.
On a June 11, 2013 visit to Dr. Hammond, the doctor noted that petitioner’s Nuvigil was
stopped a week prior because it failed to improve her condition and caused her to become moody
4 A condition of hemolysis, elevated liver enzymes, and low platelet count. See Neil M. Davis,
Medical Abbreviations 155 (15th ed. 2011).
5 A liver disease characterized by a fatty liver with inflammation. See Dorland’s Medical
Illustrated Dictionary 1768 (32d ed. 2012).
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Case 1:14-vv-00762-EDK Document 25 Filed 11/23/15 Page 4 of 10
and hallucinate. Id. at 10. Dr. Hammond documented that her narcolepsy and cataplexy had
become “quite profound[,] and she had multiple falls during the day.” Id. “It did not take hardly
any emotion at all to push her over the edge of having a cataplectic attack.” Id. Petitioner’s
performance at work continued to suffer as a result of her condition. Id.; Pet. Ex. 1 at ¶ 18. She
frequently fell asleep at work, sometimes while with a customer. Pet. Ex. 1 at ¶ 18. In May 2013,
she was asked to take a paid leave of absence to pursue more effective treatment for her condition.
Id. at ¶ 21. In June 2013, Dr. Hammond tried treating her with Pristiq to improve her cataplexy
and also decreased her dose of Nuvigil. Pet. Ex. 5 at 10. Also during this visit, Dr. Hammond noted
that he will complete her disability forms because she could not work. Id. at 10-11. Up until that
point, petitioner had been an employee at U.S. bank for thirteen years. Pet. Ex. 1 at ¶ 19.
On August 9, 2013, petitioner had a follow-up visit with Dr. Hammond. See Pet. Ex. 5 at
12. Dr. Hammond noted that petitioner was being treated with Pristiq and Nuvigil, which enabled
her to better stay awake during the day and had reduced the frequency of her cataplexy.” Id. The
medical record noted that petitioner was in good spirits and in no distress during that visit, but that
she would become tearful when talking about work. Id. Dr. Hammond recommended that she not
return to work, as she still became sleepy if she sat down for a lengthy period of time. Id. The
doctor also noted that he would like to treat petitioner with a prescription of Xyrem, however there
was difficulty with insurance approval of the medication. Id.
On a follow-up visit with Dr. Hammond on October 4, 2013, petitioner reported that she
became paralyzed for about eight minutes in a cataplectic event after experiencing anger. Pet. Ex.
5 at 14. She could only move her eyes during that episode. Id. Petitioner reported that she had
missed her dose of Pristiq the day before. Id. She reported that she still had episodes of “significant
sleep attacks” with a frequency of about one a day. Id. Whenever she sat down, she would fall
asleep. Id. She stopped driving for fear of falling asleep. Id. Dr. Hammond noted continued
difficulty with insurance approval of petitioner’s medications. Id.
On November 20, 2013, petitioner saw a neurologist and sleep specialist, Dr. Emmanuel
Mignot at Stanford Medical Center. Pet. Ex. 8 at 3-7. Dr. Mignot is a board certified sleep
Specialist and expert in narcolepsy. Id. at 20. He has been the director of the Center for Narcolepsy
at Stanford University for over nineteen years, and a director of the Stanford Sleep Division in the
Psychiatry Department. Id. Dr. Mignot noted that petitioner received an influenza vaccination and
developed excessive daytime sleepiness and sleep attacks, followed by cataplexy with knee
buckling. Id. at 2.6 Dr. Mignot noted that petitioner was still having “excessive daytime
sleepiness,” and that her sleep attack and cataplexy were not under control yet. Id. at 5. He
documented that petitioner had a forty-five pound weight gain since 2010 and dysmenorrhea. Id.
at 2. He also noted petitioner’s “difficulty organizing, planning, and making judgment,” and that
she had disrupted nighttime sleep. Id. Dr. Mignot recommended treatment with Xyrem, as it was
the “most effective medication for narcolepsy with cataplexy . . . .” Id. at 5. The doctor believed
the medication provided “a good chance for [petitioner] to regain her function.” Id.
6 In his records, Dr. Mignot incorrectly documented petitioner’s vaccination date and onset of
symptoms. Notwithstanding this error, the undersigned finds his medical records are otherwise
reliable and credible.
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On December 13, 2013, petitioner reported improvement of her condition with Xyrem. Pet.
Ex. 8 at 17. On December 17, 2013, it was noted that she had started Xyrem two weeks prior. As
a result of that medication, her cataplexy was “considerably better,” she was no longer
experiencing the frequent “zingers” associated with her cataplexy, and that she was feeling less
sleepy during the day. Id. Dr. Mignot recommended that she increase her dose of Xyrem from 2.5
grams to 3.0 grams. Id.
On January 9, 2014, Dr. Mignot wrote to petitioner’s insurance carrier, Blue Cross Blue
Shield, in support of her appeal of the decision to deny coverage of Xyrem. Pet. Ex. 8 at 20-25.
Dr. Mignot wrote that “[petitioner] first developed symptoms of narcolepsy in January of 2011
[sic] after flu vaccination in December of 2010 [sic].” Id. at 20. He summarized her subsequent
medical history and noted that she had been unable to work since May 6, 2013 “due to the lack of
adequate control of cataplexy and continued daytime sleepiness.” Id. at 21. He noted that her
current prescriptions, Ritalin, Provigil, Effexor, and Pristiq did not adequately control her
condition, and caused side effects like headaches, negative personality effects, and severe mood
swings. Id. He wrote that petitioner had been able to receive Xyrem through a voucher program
for patients who are unable to get coverage, however the voucher only provided a short trial. Id.
He advocated for her appeal, noting that her symptoms “have improved considerably” on Xyrem,
and that “Xyrem is the only approved medication for the purpose of treating cataplexy.” Id.
Dr. Mignot also wrote a letter to the employee benefits analyst at the Minneapolis Claims
Office on January 9, 2014 to request an extension of petitioner’s short term disability benefits. Pet.
Ex. 8 at 23. He wrote that “we are confident that with the proper medication and minor
accommodations, [] Ms. Garrison will be able to return to full time employment. Id. He reported
that the persistent symptoms which make it difficult for her to go back to work include: slurred
words and the inability to communicate due to cataplexy, the inability to drive due to cataplexy,
daytime sleepiness due to disrupted nighttime sleep, and the inability to maintain focus or make
reliably good judgment. Id. at 24-25.
In her affidavit, signed on August 13, 2014, petitioner averred that Dr. Mignot informed
her that persons with a particular genetic susceptibility can experience an autoimmune reaction
after receiving an H1N1 vaccination (which is included in the trivalent influenza vaccination she
received), whereby neurons which produce hypocretin are destroyed, resulting in narcolepsy and
cataplexy. Pet. Ex. 1 at 5. Dr. Mignot’s medical records note that petitioner tested positive for the
genetic HLA marker DQB1*0602, which predisposes her to narcolepsy. Pet. Ex. 8 at 14. Also in
her affidavit, petitioner stated that Dr. Mignot was able to persuade her health insurance company
to pay for Xyrem, but for only six months. Pet. Ex. 1 at 6. She further stated that Xyrem has
“eliminated the cataplexy attacks, improved her nighttime sleep, and has reduced her sleep attacks
to one a day. Id. She noted that before a sleep attack, she has approximately a 60 to 120 second
warning before she falls into REM sleep for about twenty minutes. Id. She further noted that she
continues to have episodes of micro-sleep, where she does not remember any conversation and her
communication is slow and sometimes incoherent. Id.
Petitioner avers that her condition has profoundly affected her life. Pet. Ex. 1 at 6. She is
unable to help her family pay bills or drive her four children to their activities. Id. She relies on
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her family to transport her for her activities. Id. She lives on a farm with her husband and is unable
to contribute to their farming duties. Id.
II. ANALYSIS
A. Legal Standard
The Vaccine Act established the Program to compensate vaccine-related injuries and
deaths. § 300aa-10(a). “Congress designed the Vaccine Program to supplement the state law civil
tort system as a simple, fair and expeditious means for compensating vaccine-related injured
persons. The Program was established to award ‘vaccine-injured persons quickly, easily, and with
certainty and generosity.’” Rooks v. Sec’y of HHS, 35 Fed. Cl. 1, 7 (1996) (quoting H.R. Rep. No.
908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344).
In order to prevail under the Program, a petitioner must prove either a “Table” injury or
that a vaccine listed in the Table was the cause in fact of an injury (an “off-Table” injury). Here,
petitioner is not alleging a Table injury, but rather that her influenza vaccination on November 9,
2011 caused-in-fact her narcolepsy and cataplexy, off-Table injuries.
An “off-Table” injury is established when the petitioner demonstrates, by a preponderance
of the evidence: (1) that she received a vaccine set forth on the Vaccine Injury Table; (2) that she
received the vaccine in the United States; (3) that she sustained or had significantly aggravated an
illness, disease, disability, or condition caused by the vaccine; and (4) that the condition has
persisted for more than six months. § 13(a)(1)(A).
The record is clear that petitioner received a vaccine listed on the Vaccine Injury Table and
that she was vaccinated in the United States. See Pet. Ex. 4. The medical records also document
that petitioner experienced narcolepsy and cataplexy for more than six months.
To satisfy her burden of proving causation in fact, petitioner must establish each of the
three Althen factors by preponderant evidence: (1) a medical theory causally connecting the
vaccination and her injury; (2) a logical sequence of cause and effect showing that the vaccination
was the reason for the injury; and (3) a proximate temporal relationship between vaccination and
injury. Althen, 418 F.3d at 1278; see de Bazan v. Sec’y of HHS, 539 F.3d 1347, 1351-52 (Fed. Cir.
2008); Caves v. Sec’y of HHS, 100 Fed. Cl. 119, 132 (2011), aff. per curiam, 463 Fed. Appx. 932
(Fed. Cir. 2012) (specifying that each Althen factor must be established by preponderant evidence).
The preponderance of the evidence standard, in turn, has been interpreted to mean that a fact is
more likely than not. See Moberly v. Sec’y of HHS, 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010).
Proof of medical certainty is not required. Bunting v. Sec’y of HHS, 931 F.2d 867, 873 (Fed. Cir.
1991).
In determining whether petitioner is entitled to compensation, a special master must
consider the entire record and is not bound by any particular piece of evidence. § 13(b)(1) (stating
a special master is not bound by any “diagnosis, conclusion, judgment, test result, report, or
summary” contained in the record). Thus, a special master must weigh and evaluate opposing
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expert opinions, medical and scientific evidence, and the evidentiary record in deciding whether
petitioners have met their burden of proof.
B. Petitioner’s Expert Opinion and Althen Analysis
Petitioner filed an expert opinion from Dr. Marcel Kinsbourne. Dr. Kinsbourne is a
research professor at the Center for Cognitive Studies at Tufts University. Pet. Ex. 31 at 2. He is
also a professor of psychology at New School University, in New York. Id. Previously, he was the
director of the Behavioral Neurology Unit at Sargent College of Allied Health Professions at
Boston University. Id. Dr. Kinsbourne received medical degrees from Oxford University in
England, and Duke University in North Carolina. Id. at 1.
Dr. Kinsbourne opined that petitioner’s sleep disorder began after receipt of a trivalent flu
vaccination containing the H1N1 strain. Pet. Ex. 29 at 2-3. He opined that petitioner meets the
behavioral and objective criteria for narcolepsy. Respondent does not dispute that petitioner’s
correct diagnosis is narcolepsy with cataplexy. Res. Report at 4.
1. Althen Prong One
Under the first prong of Althen, petitioner is required to set forth a reliable medical theory
that explains how a particular vaccination can cause the injury in question. Althen, 418 F 3d at
1279. Scientific certainty is not required to establish causation under the Vaccine Act. Id. at 1280
(holding that the purpose of the Vaccine Act’s preponderance of the evidence standard “is to allow
the finding of causation in a field bereft of complete and direct proof of how vaccines affect the
human body”). However, a causation theory or mechanism must be proposed and supported by a
sound and reliable medical or scientific explanation. Knudsen v. Sec’y, HHS, 35 F.3d 543, 548
(Fed Cir. 1994).
Petitioner’s theory, provided by Dr. Kinsbourne, is consistent with Dr. Mignot’s
explanation to petitioner regarding her condition. Dr. Kinsbourne explained that hypocretin, a
neurotransmitter, contributes to a person’s waking state by an excitatory effect on several
brainstem loci that control the level of arousal. Pet. Ex. 29 at 5. Conversely, “inhibitory
neurotransmitters lower the brain’s arousal level and counteract hypocretin and other excitatory
neurotransmitters.” Id. at 5-6. This infrastructure of excitatory and inhibitory neurotransmitters
imposing opposite effects in the brainstem is known as the “sleep switch hypothesis.” Id. at 6.
More fully explained, “[w]ake promoting and sleep-promoting loci in separate regions of the
hypothalamus inhibit each other, constituting an ‘opponent system.’ Inactivation of either system
leaves the other in relative control, resulting in insomnia or in narcolepsy.” Id.
According to Dr. Kinsbourne, people with narcolepsy have been shown to be deficient in
hypocretin levels in the cerebrospinal fluid, and to also have greatly diminished numbers of
hypocretin-producing neurons in the dorsolateral hypothalamus. Pet. Ex. 29 at 6 (citing Nishino et
al., Hypocretin (orexin) Deficiency in Human Narcolepsy, 355 The Lancet 39 (2000) [Pet. Ex.
45]). Hypocretin deficiency in persons with narcolepsy is believed to be a consequence of a
destructive autoimmune attack on hypocretin-producing neurons. Pet. Ex. 29 at 6 (citing Mahlios
et al., The Autoimmune Basis of Narcolepsy, 23 Current Opinion in Neurobiology 767 (2013)
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[Pet. Ex. 39]). Dr. Kinsbourne commented that depletion of hypocretin-producing neurons is
“‘seemingly selective,’” as the other cells intermingled with hypocretin-producing cells are left
unaffected, whereas the cells producing hypocretin are destroyed—leading to the “hypothesis that
narcolepsy is an autoimmune-driven process within the hypothalamus, presumably mediated by
CD4+ T cells.” Pet. Ex. 29 at 6; see also Pet. Ex. 39 at 767.
According to Dr. Kinsbourne and the medical literature, current thinking is that the H1N1
vaccine activates CD4+ T cells, which have a peptide mimic with self-epitopes in hypocretin
releasing neurons. Pet. Ex. 29 at 8-9; see also Pet. Ex. 42 at 3157 (noting that “narcolepsy is
characterized by the presence of autoreactive CD4+ T cells to hypocretin fragments when
presented by DQ0602,” a narcolepsy gene). Autoimmunity involving the CD4+ T cells triggers
the destruction of neurons producing hypocretin, which then leads to the development narcolepsy.
Id. According to Dr. Kinsbourne and the medical literature, in autoimmune subjects with verified
low hypocretin activity, almost all have a genetic susceptibility. See Pet. Ex. 6 at 6; Pet. Ex. 42. A
genetic susceptibility for narcolepsy was found in the petitioner here. See Pet. Ex. 8. Dr.
Kinsbourne noteed that current research is exploring a molecular mimic between epitopes of
hypocretin and proteins from an H1N1 infection or vaccination. Pet. Ex. 29 at 7; see Pet. Exs. 33,
34, 49.
Epidemiological studies in China, Finland, Sweden, France, Norway, Ireland, and Canada,
found a “significant increase in the prevalence of narcolepsy” in those populations after receipt of
the pandemic H1N1 influenza vaccine and also after H1N1 infections. Pet. Ex. 29 at 4. Dr.
Kinsbourne noted that, although those studies involved a formulation of the H1N1 vaccine
(Pandemrix) which contains an adjuvant, and the vaccine in question here did not contain an
adjuvant, these studies are nevertheless significant as “it is unlikely” that the adjuvant in
Pandemrix “is solely responsible for the causal autoimmune reaction.” Pet. Ex. 29 at 7. Petitioner
submitted multiple epidemiological studies on the increased incidence of narcolepsy following
receipt of the pandemic H1N1 influenza vaccine and also after epidemic H1N1 infections. See Pet.
Exs. 31, 41, 43, 44, 46, 47.
Based on a review of the evidence, petitioner has met her burden of setting forth a reliable
medical theory by preponderant evidence. Reliable medical literature and petitioner’s expert
opinion demonstrates that the H1N1 component of the trivalent flu vaccine can cause
autoimmunity in a susceptible individual, whereby an attack on neurons which produce hypocretin
causes disruption in the sleep/arousal centers of the brain, leading to narcolepsy.
2. Althen Prong Two
Proof of Althen prong two requires a logical explanation as to how the vaccine did cause
the injury in the petitioner. “A logical sequence of cause and effect’ means what it sounds like—
the claimant’s theory of cause and effect must be logical.” Capizzano v. Sec’y of HHS, 440 F.3d
1317, 1326 (Fed. Cir. 2006). The proof need not rise to the level of scientific certainty but rather
to the Vaccine Act’s preponderance standard under the system created by Congress, in which close
calls regarding causation are resolved in favor of injured claimants.’” Andreu, 569 F.3d at 1378.
7 Emmanuel J.M. Mignot, History of Narcolepsy at Stanford University, 58 Immunological
Research 315-39 (May 14, 2014).
8

Case 1:14-vv-00762-EDK Document 25 Filed 11/23/15 Page 9 of 10
In this case, petitioner’s treating physician, Dr. Mignot, at all times maintained that
petitioner’s narcolepsy and cataplexy were attributable to her flu vaccination, which contained
immunization against the H1N1 influenza virus. See Pet. Ex. 8 at 20; Pet. Ex. 1 at 5. Additionally,
Dr. Mignot found petitioner had tested positive for the genetic HLA marker DQB1*0602, which
indicated a genetic susceptibility to narcolepsy. Pet. Ex. 8 at 14. Dr. Mignot’s medical records and
medical literature on narcolepsy are particularly persuasive and compelling in this case.
Additionally, Dr. Kinsbourne opined that:
[a] role in the causation of narcolepsy for H1N1 vaccine is widely considered to be
biologically reasonable. Ms. Garrison was diagnosed [with narcolepsy] by the
premier expert physician in the field of narcolepsy as having experienced a vaccine
injury, by a neurobiological mechanism that has been largely elucidated. She has
the HLA risk factor for narcolepsy. She had the onset of the illness within a
medically reasonable temporal interval of a vaccination that included H1N1
vaccine . . . . Thus the trivalent influenza vaccine did cause or significantly
contribute[d] to the cause of her narcolepsy.
Pet. Ex. 29 at 9-10. The undersigned agrees with Dr. Kinsbourne and finds his opinion persuasive
for all the reasons he articulated. Accordingly, petitioner has met her burden of establishing a
logical explanation of how her vaccination caused her injury under Althen prong two.
3. Althen Prong Three
Prong three of Althen requires a showing that the timing of the onset of petitioner’s
condition was reasonable. Petitioner must show a proximate temporal relationship between
vaccination and injury. Althen, 418 F.3d at 1278.
The timing in this case is reasonable in light of the evidence. Dr. Kinsbourne noted that
“[t]he documented time intervals between H1N1 vaccination and the onset of narcolepsy have
ranged up to six months,” citing Dr. Mignot’s article which found a peak in narcolepsy cases in
China about four to six months after the peak of H1N1 infections. Pet. Ex. 29 at 9; Pet. Ex. 42 at
327. Additionally, Dr. Kinsbourne noted that “Dauvilliers [and others, including Dr. Mignot]
documented the range of vaccination to onset intervals in their sample[,] and found it to vary
between two days and twenty weeks.” Pet. Ex. 29 at 9. Dr. Kinsbourne went on to note that in
petitioner’s case, the interval was approximately two weeks.” Id.; see also Pet. Ex. 1 (averring that
petitioner began experiencing excessive daytime sleepiness in mid-November 2011, and that in
early December 2011, she experienced her first episode of suddenly falling asleep and sudden
collapses triggered by any strong emotion).
Although the vaccination date alleged in the petition and petitioner’s affidavit are
inconsistent with the date provided in medical records, in either event, the timing of the onset of
petitioner’s condition is supported by the medical literature. The onset of petitioner’s condition
appears to be in the range of one to two weeks, whether the date of onset is calculated based on
the alleged October 28, 2011 vaccination date (on which Dr. Kinsbourne based his opinion), or
9

Case 1:14-vv-00762-EDK Document 25 Filed 11/23/15 Page 10 of 10
calculated based on the vaccination date of November 9, 2011 (noted in the medical records). Both
time frames are consistent with the medical literature provided, which notes an onset of two days
to up to five months.
Accordingly, petitioner has met her burden under Althen prong three.
III. CONCLUSION
Petitioner has provided reliable and persuasive evidence under all three prongs of Althen.
Although respondent does not recommend compensation in this matter, she stated an intent not to
defend this case and presented no evidence refuting petitioner’s case. Based on a review of the
evidence, the undersigned finds that petitioner is entitled to compensation from this Program.
A damages order will be issued separately.
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
10

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_14-vv-00762-2
Date issued/filed: 2016-09-08
Pages: 11
Docket text: Docketed for Administrative Purposes JUDGE VACCINE REPORTED OPINION (REISSUED) denying Motion for Review. Signed by Judge Elaine D. Kaplan. (jt1) Copy to parties. Modified on 10/26/2016 - corrected PDF (jt1).
--------------------------------------------------------------------------------
Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 1 of 11
In the United States Court of Federal Claims
No. 14-762V
(Filed Under Seal: August 17, 2016)
(Reissued: September 8, 2016)*
)
KRISTINA GARRISON, ) Keywords: Interim Attorneys’ Fees and
) Costs; 42 U.S.C. § 300aa-15(e)(1);
Petitioners, ) Motion for Review; 42 U.S.C. § 300aa-
) 12(e)(2)(B); Forum Rate Rule; Davis
v. ) County Exception.
)
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
)
Curtis R. Webb, Twin Falls, ID, for Petitioner.
Ryan Daniel Pyles, Trial Attorney, with whom were Voris E. Johnson, Jr., Assistant Director,
Vincent J. Matanoski, Deputy Director, Rupa Bhattacharyya, Director, and Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, United States Department of Justice, Civil
Division, Torts Branch, Washington, DC, for Defendant.
OPINION AND ORDER
KAPLAN, Judge.
This case is currently before the Court on the government’s motion to review the Special
Master’s award of interim attorneys’ fees and costs pursuant to the Rules of the United States
Court of Federal Claims (RCFC), Appendix B, Vaccine Rules 23 and 24. ECF No. 42. For the
reasons set forth below, the government’s motion for review is DENIED and the Special
Master’s decision is AFFIRMED.
BACKGROUND
I. Proceedings Before the Office of Special Masters
On August 22, 2014, Kristina Garrison filed a petition pursuant to the National Vaccine
Injury Compensation Act, 42 U.S.C. §§ 300aa-1 et seq. (2012) (Vaccine Act). Petition at 1, ECF
* In accord with the Rule of the Court of Federal Claims, App. B, Rule 18(b), this Opinion was
initially filed under seal to afford the parties fourteen days to propose redactions. The parties did
not propose any redactions. Accordingly, the opinion is reissued publicly in its original form.

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 2 of 11
No. 1. In that petition, Ms. Garrison alleges that as a result of receiving the trivalent influenza
(flu) vaccination on October 28, 2011, she developed narcolepsy with cataplexy. Id. ¶¶ 1–2. She
claims that her symptoms are the cause of her continued unemployment, and that they diminish
her quality of life. Id. ¶¶ 8–9.
On October 29, 2015, Special Master Thomas L. Gowen issued a Ruling on Entitlement
finding in favor of Ms. Garrison on the issue of liability. ECF No. 23. The Special Master
reviewed Ms. Garrison’s medical records and treatment records, as well as expert opinions on
narcolepsy and cataplexy, and several pieces of medical literature. Id. at 1. The Special Master
concluded that Ms. Garrison had provided reliable and persuasive evidence to support her claim
and held that she was entitled to compensation. Id. at 2. The parties then began the damages
phase of the proceeding, which is now ongoing. See Damages Order, ECF No. 24.
II. Petition for Interim Attorneys’ Fees and Costs
Ms. Garrison is represented in this action by Mr. Curtis R. Webb, a solo practitioner in
Twin Falls, Idaho, who has substantial experience representing Vaccine Act petitioners. See
infra. On January 7, 2016, Ms. Garrison filed a petition for interim attorneys’ fees and costs in
accordance with 42 U.S.C. § 300aa-15(e)(1), ECF No. 27, requesting that the Special Master
award $62,086.50 in attorneys’ fees and $12,626.51 in costs incurred. Id. at 1–2. To determine
the fee award, Ms. Garrison proposed that that Special Master apply a rate of $415 per hour,
which she contended was the reasonable rate that would apply to Mr. Webb’s services in the
forum for this action—Washington, DC. Id. at 1, 9.
On March 1, 2016, the government filed a brief in opposition to Ms. Garrison’s petition.
ECF No. 31. Citing Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir.
2008), the government argued that any fee awarded to Ms. Garrison should be based on the local
rate for Twin Falls, Idaho (which the government argued was $275 per hour), rather than the rate
for Washington, DC, because counsel had performed all work on the case outside of
Washington, DC, and because the difference between the local and forum rates was a substantial
one. Id. at 3–4.
III. The Special Master’s Decision
On April 29, 2016, Special Master Gowen issued his decision on interim attorneys’ fees
and costs. Decision on Interim Attorneys’ Fees and Costs (Dec. on Fees), ECF No. 38. For the
reasons set forth in his opinion, he awarded Ms. Garrison $56,801.25 in attorneys’ fees and
$12,626.51 for costs. Id. at 13. Critically for purposes of the motion for review, Special Master
Gowen ruled that the difference between the forum rate for Mr. Webb’s services (which he
determined was $387.50 per hour) and the local rate (which he pegged at $327 per hour) was not
“very significant” within the meaning of Avera. Id. at 9 (citing Avera, 515 F.3d at 1347–48).
Therefore, he used the forum rate as the basis for determining reasonable attorneys’ fees in this
case. Id.
Special Master Gowen began his analysis by observing that a reasonable hourly rate
under the Vaccine Act is “the prevailing market rate defined as the rate prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
2

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 3 of 11
reputation.” Id. at 2 (quoting Avera, 515 F.3d at 1347–48). He noted that, under Avera, “a court
should generally use the forum rate, i.e., the District of Columbia rate,” when determining a fee
award. Id. “However,” he explained, “an exception to the forum rule applies where [as in this
case] the bulk of an attorney’s work is performed outside of the forum, and where there is a ‘very
significant’ difference in compensation rates between the place where the work was performed
and the forum.” Id. (quoting Avera, 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt. &
Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency (Davis County), 169
F.3d 755, 758 (D.C. Cir. 1999))).
The Special Master began his analysis of the prevailing market rate in Twin Falls, Idaho
by reviewing the previous fee awards to Mr. Webb in vaccine cases, which Mr. Webb’s affidavit
identified as the basis for setting his local rate in this case. See Dec. on Fees at 3. He observed
that in 2013 two special masters determined that $270 per hour was a reasonable local hourly
rate for work that Mr. Webb performed in 2013. Id. Special Master Gowen adjusted that rate
upward by 3.7%, which was the annual rate of growth in attorneys’ fees since 2008 that he had
applied in a previous case. Id. at 3 (citing McCulloch v. Sec’y of Health & Human Servs., No.
09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mastr. Sept. 1, 2015)). He concluded that “if local
rates are determined by adjusting the previously awarded $270 per hour rate in vaccine cases, a
reasonable local rate for work performed in 2014-2015 would be $285 per hour.” Id. at 4; see
also Pet. for Interim Fees and Costs, Aff. of Curtis R. Webb ¶ 11 (“In my opinion, $285 an hour
would be a reasonable local rate for work done in 2014–2015 for an attorney of my experience
(31 years as an attorney), specialization, and reputation in Twin Falls, Idaho.”).
Special Master Gowen, however, chose not to use the rates previously employed by other
special masters as the basis for determining a reasonable local hourly rate in this matter. Instead,
he examined the local rates approved in several decisions of the federal district court in Boise,
Idaho, which Ms. Garrison had cited for the first time in her reply brief in support of her motion
for fees. Dec. on Fees at 4–6 (citing Pet’r’s Reply in Supp. of Her Mot. for Interim Attorneys’
Fees and Costs at 3, ECF No. 33 (arguing that the cases established that the appropriate local rate
actually “may be as high as $400 an hour”)). The Special Master concluded that the cases cited
“support a finding that a reasonable local rate for Mr. Webb’s work in 2014 and 2015 is higher
than $285 per hour.” Id. at 5.
Two of the cases upon which the Special Master relied were civil rights cases decided in
2014 in which the district court judges had awarded $400 per hour to several attorneys with some
21 to 34 years of experience. Id. at 4 (citing Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL
7245631, at *1–*4 (D. Idaho, Dec. 19, 2014), and Community House, Inc. v. City of Boise, No.
1:05-cv-00283-CWD, 2014 WL 1247758, at *6–*7 (D. Idaho, Mar. 25, 2014). Latta was a facial
constitutional challenge to Idaho laws that defined marriage as the legal union between a man
and a woman. See Latta, 2014 WL 7245631, at *1. Community House was an action brought by
a shelter for the homeless in Boise, Idaho, alleging that its residents had been unlawfully evicted
from the shelter in violation of the Fair Housing Act, the Idaho and United States Constitutions,
and various laws of the State of Idaho. See Community House, 2014 WL 1247758, at *1. The
two other cases the Special Master examined were slightly older breach of contract cases in
which the district court judges had awarded fees to attorneys with 41 and 30 years of experience
at rates of $300 and $350 per hour respectively. Dec. on Fees at 4–5 (citing J.R. Simplot Co. v.
3

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 4 of 11
Nestle USA, Inc., No. CV 06-141-S-EJL-CWD, 2009 U.S. Dist. LEXIS 62439 (D. Idaho, July
20, 2009) and LaPeter v. Canada Life Ins. of America, No. CV–06–121–S–BLW, 2007 WL
4287489 (D. Idaho, Dec. 4, 2007)).
The Special Master explained that, in his view, “the judgment of federal judges located in
Idaho should be awarded significant respect, particularly on an issue such as local attorney rates
with which they are presumably familiar.” Id. at 5. He concluded, therefore, “that the rates
awarded in Latta, Community House, J.R. Simplot, and LaPeter are appropriate points of
reference for determining Mr. Webb’s local rate.” Id. at 6. In that regard, the Special Master
opined that while the four cases “vary in complexity of subject matter and procedure,” they
“represent a range of complex litigation cases that I find to be generally of the same complexity
as a vaccine case.” Id. He concluded that the rates awarded in these district court cases “suggest
that a reasonable local rate for complex litigation matters similar to Laffey Matrix1 cases for
Idaho attorneys with over 20 years of experience in 2014 and 2015 is approximately $400 per
hour.” Id. at 8.
In the four cited cases that Special Master Gowen used as points of reference, attorneys’
fees were available only to prevailing parties. By contrast, attorneys’ fees may be awarded in
vaccine cases regardless of whether petitioners prevail on their underlying claims. See 42 U.S.C.
§ 300aa-15(e) (permitting the special master to award attorneys’ fees and costs whether or not
the special master awards the petitioner any compensation). Therefore, the Special Master
reduced the $400 per hour rate awarded in the Idaho district court cases by 18.3% to eliminate
what he called the “risk premium.”2 Dec. on Fees at 8. So reduced, he concluded that “a
reasonable local rate for Mr. Webb’s work performed in 2014 and 2015 is $327 per hour.” Id.
1 The Laffey Matrix is a “schedule of rates maintained by the Department of Justice to
compensate attorneys prevailing in complex federal litigation” subject to fee shifting statutes.
Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1383 (Fed. Cir. 2011) (citations
and quotations omitted).
2 Special Master Gowen’s risk premium analysis was first set forth in his decision in McCulloch.
See 2015 WL 5634323, at *18–*19. As he explained in this case, to establish a “risk premium”
of 18.3%, he compared the Laffey Matrix rates for Washington, DC to the forum rate for
Vaccine Act cases in Washington, DC. Dec. on Fees at 6. He explained his calculation as
follows:
For attorneys with more than 20 years of experience, the Laffey rate is $520 per hour.
Using the same framework as the Laffey Matrix, I determined that an appropriate rate
range for practitioners in the Vaccine Program with more than 20 years’ experience
was $350 to $425. Thus, comparing the Laffey rate of $520 per hour for attorneys with
20 years’ experience to the high end of the McCulloch range, $425 per hour, I
effectively eliminated the risk premium by reducing the Laffey rate by approximately
18.3% for vaccine cases.
Id. (citations omitted).
4

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 5 of 11
Special Master Gowen then compared this local rate to the Washington, DC rate. In
determining the forum rate, Special Master Gowen relied on a determination he had made in
McCulloch that $350 to $425 per hour was “a reasonable range for attorneys with more than 20
years of experience” who take Vaccine Program cases in Washington, DC. Id. at 10 (citing
McCulloch, 2015 WL 5634323). Special Master Gowen found that “[b]ased on the quality of
Mr. Webb’s advocacy and years of vaccine program experience” 3 Mr. Webb should be awarded
the median forum rate in Washington, DC of $387.50 per hour. Id. at 11.
The Special Master then addressed whether the difference between the local rate and the
forum rate was sufficiently large to require use of the local rate to calculate the award of fees
consistent with Avera. He concluded that the local rate of $327 per hour is “not very
significantly different” from the median forum rate of $387.50 per hour. Indeed, he concluded
that whether the forum rate is $387.50, $415, or $425 per hour, the local rate “is different, but
not very significantly so, from the forum rate range in McCulloch.” Id. at 10 (original emphasis).
Therefore, the Special Master ruled that, under Avera, the fee award should be calculated on the
basis of the forum rate. Id.
IV. Request for Review
Pursuant to RCFC, Appendix B, Vaccine Rules 23 and 24, the government filed a Motion
for Review of the Special Master’s decision on May 31, 2016. Def.’s Mot. for Review (Def.’s
Mot.), ECF No. 42. The petitioner filed a response, and oral argument was held on August 9,
2016.
DISCUSSION
I. Jurisdiction and Standard of Review
The Court of Federal Claims has jurisdiction under the Vaccine Act to review a special
master’s decision upon the timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)–(2).
The court’s jurisdiction extends to requests for review of a special master’s decision awarding a
petitioner interim attorneys’ fees. See Avera, 515 F.3d at 1352; RCFC Vaccine Rule 13 (stating
that a special master’s decision regarding attorneys’ fees is treated as “separate” for the purposes
of obtaining review in the Court of Federal Claims). Therefore, this Court has jurisdiction over
the government’s motion for review of Special Master Gowen’s April 29, 2016 decision on
interim attorneys’ fees and costs.
3 The Special Master observed that “[a]mong vaccine practitioners, Mr. Webb has significant
experience in the Program. He has 27 years of experience representing more than 275 petitioners
in the National Vaccine Injury Compensation Program. In addition, he served on the Advisory
Committee on Childhood Vaccines (ACCV) from 1992 to 1995, and is currently a member of the
Vaccine Committee of the Advisory Council to the United States Court of Federal Claims.
Special Masters have noted that his work is of high quality.” Dec. on Fees at 8 (citations
omitted).
5

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 6 of 11
The Court’s scope of review of Special Master Gowen’s decision is prescribed by statute.
Pursuant to 42 U.S.C. § 300aa–12(e)(2), upon review of the record, the Court of Federal Claims
may:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found to
be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
As the court of appeals has observed, the standards set forth in 42 U.S.C. § 300aa–
12(e)(2)(B) “vary in application as well as degree of deference.” Munn v. Sec’y of Dep’t of
Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). “Fact findings are
reviewed . . . under the arbitrary and capricious standard; legal questions under the ‘not in
accordance with law’ standard; and discretionary rulings under the abuse of discretion standard.”
Id.
Pursuant to the Vaccine Act, a special master or the court may award reasonable
attorneys’ fees and costs incurred in the proceedings “if the special master or court determines
that the petition was brought in good faith and there was a reasonable basis for the claim for
which the petition was brought.” 42 U.S.C. § 300aa–15(e)(1). An attorney fee award by either a
special master or by the court is reviewed under the abuse of discretion standard. Hall v. Sec’y of
Health & Human Servs., 640 F.3d 1351, 1356–57 (Fed. Cir. 2011). “An abuse of discretion
exists ‘when the trial court’s decision is clearly unreasonable, arbitrary or fanciful, or is based on
clearly erroneous findings of fact or erroneous conclusions of law.’” Lazare Kaplan Int’l, Inc. v.
Photoscribe Techs., Inc., 714 F.3d 1289, 1293 (Fed. Cir. 2013) (quoting Fiskars, Inc. v. Hunt
Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002)).
II. Merits
A. Determination of Attorneys’ Fees in Vaccine Act Cases
The Federal Circuit has “endorsed the use of the lodestar approach to determine what
constitutes ‘reasonable attorneys’ fees’ under the Vaccine Act.” Avera, 515 F.3d at 1347
(quoting Saxton ex rel. Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1521). Under
that approach, the special master or the court “first determines an initial estimate of a reasonable
attorneys’ fees by ‘multiplying the number of hours reasonably expended on the litigation times
a reasonable hourly rate.’” Id. at 1348 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); see
also Hall, 640 F.3d at 1353. “[A] reasonable hourly rate” is ‘“the prevailing market’ rate defined
as the rate ‘prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.’” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S.
at 896 n.11).
6

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 7 of 11
The general rule under fee shifting statutes is that a reasonable hourly rate will be based
on the “forum rate”—that is, the market rate of the locale in which the deciding tribunal sits.
Avera, 515 F.3d at 1348. The forum rule is generally used because it is “neutral” and “will not
work to any clear advantage for either those seeking attorneys’ fees or those paying them.”
Donnell v. United States, 682 F.2d 240, 251 (D.C. Cir. 1982); see also Davis County, 169 F.3d at
759. Moreover, without the forum rule, “plaintiffs would be free not only to retain counsel from
literally anywhere in the United States, but arguably the entire world . . . . The forum rate rule is
the most sensible method of avoiding such excesses, while allowing parties to select competent
counsel of their choice.” Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1887
(3d Cir. 1995) (quoting Student Pub. Interest Research Grp. of N.J. v. Monsanto Co., 721 F.
Supp. 640 (D.N.J. 1989)).
The court of appeals has held that in Vaccine Act cases, “a court in general should use the
forum rate in the lodestar calculation,” as “there is no reason to depart from the general rule that
a court should apply a forum rate” when calculating attorneys’ fees. Avera, 515 F.3d at 1349.
The court of appeals, however, has also noted the existence of a “limited exception” to the forum
rule in cases where the bulk of an attorney’s work is performed outside of the forum and where
there is a “very significant” difference between the forum rate and the local rate. Id. at 1349
(citing Davis County, 169 F.3d at 759). This limitation on the general rule—known as the “Davis
County exception” in recognition of the case from which it originates—is designed to prevent
windfalls and avoid the “‘occasional erratic result where the successful petitioner is vastly
overcompensated.’” Id. at 1349 (quoting Davis County, 169 F.3d 758–59). As the court of
appeals has observed, “[a]pplying this exception ensures that attorneys are awarded reasonable
compensation for their work and more appropriately reflects the purpose of a fee-shifting statute,
especially in cases arising under the no-fault Vaccine Act.” Hall, 640 F.3d at 1353.
There is no objective standard or bright line rule for determining when the difference
between a local and forum rate should be considered “very significant” for purposes of invoking
the Davis County exception. Indeed, the court of appeals has observed that setting such a rule
“would be stifling and impractical.” Hall, 640 F.3d at 1357. It has also noted that “making this
determination is multifaceted and the experience of the special master is invaluable to it.” Id.
Thus, it has instructed that “[s]pecial masters should . . . continue to rely on the evidence before
them and their own trial experience in similar litigations in making such a determination.” Id.
B. Special Master’s Determination of Mr. Webb’s Local Rate
The court of appeals has recognized that special masters have “discretion in determining
the amount of a fee award” in light of their “superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what essentially are factual matters.”
Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). Further,
because “[s]uch fee determinations are within the discretion of a trial forum,” they “are entitled
to deference.” Id. Thus, “[i]f the special master has considered the relevant evidence of record,
drawn plausible inferences and articulated a rational basis for the decision, reversible error will
be extremely difficult to demonstrate.” Hines ex rel. Sevier v. Sec’y of Dep’t of Health &
Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991).
7

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In this case, the Special Master engaged in a multi-factor analysis to determine a
reasonable local rate for Mr. Webb’s services, and the basis for his decision is fully explained in
his opinion. As described above, he considered the rates at which attorneys’ fees had been
awarded to Mr. Webb in several previous vaccine cases, took into account Mr. Webb’s
significant experience in vaccine litigation and the high quality of his work, and noted that there
were only a limited number of attorneys in Idaho who take vaccine cases. Dec. on Fees at 3–4. In
addition, the Special Master examined four Idaho district court decisions involving other fee
shifting statutes, and used them as reference points to determine a reasonable local rate in this
case. Id. at 4–5. Finally, he made downward adjustments to the rates awarded in the district court
cases to address the “risk premium” that would play a part in determining the rates charged in
cases—like those decided by the Idaho district court—where attorneys’ fees are awarded only to
prevailing parties. Id. at 5–8. Based upon his consideration of all of these factors, he determined
that $327 per hour was a reasonable local rate for services by an attorney with Mr. Webb’s level
of expertise and high quality of representation. Id. at 8.
Notwithstanding this detailed analysis, the government contends that the Special Master
abused his discretion in setting Mr. Webb’s local rate at $327 per hour because the $327 per hour
rate was higher than the rate Mr. Webb identified in his affidavit as a reasonable local rate for his
services. Def.’s Mot. at 7. Moreover, the government argues that the Special Master did not
provide an adequate explanation of why he rejected the rate specified in Mr. Webb’s affidavit.
Id. In addition, the government asserts, the district court cases upon which the Special Master
relied were of greater complexity and impact than a vaccine case, and so do not support a rate of
$327 per hour for a vaccine practitioner. Id. at 8.
These arguments lack merit. The government identifies no basis for precluding the
Special Master from awarding fees at a rate higher than that initially sought by counsel, if other
evidence of record supports such a rate. And there is no merit to the government’s argument that
the Special Master “utterly fail[ed] to explain” why he selected a local hourly rate ($327) that
was higher than the one set forth in counsel’s affidavit ($285). Id. at 8. To the contrary, the
Special Master explained his reasoning in detail, observing that it was appropriate to use the
cited district court cases as points of reference because although the cases “vary in complexity of
subject matter and procedure” they were “generally of the same complexity as a vaccine case.”
Dec. on Fees at 6. Citing his earlier decision in McCulloch, he reasoned that many of the civil
rights, employment discrimination, and Freedom of Information Act cases in which courts have
awarded Laffey Matrix rates (with the concurrence of the U.S. Attorney for the District of
Columbia) “are not as complex as, or no more complex than, vaccine cases in terms of their
subject matter and evidence.” Id. (quoting McCulloch, 2015 WL 5634323, at *18).
There is nothing “clearly unreasonable, arbitrary or fanciful” about the Special Master’s
conclusion that the district court cases upon which he relied involved a level of complexity
analogous to vaccine cases. In fact, as the Special Master observed, two of the cases upon which
he relied—J.R. Simplot and LaPeter—“did not involve particularly complex subject matter” at
all. Id. at 7. Thus, “[i]n J.R. Simplot, the court noted that although the ‘document production and
organization may have been intensive, the legal issues presented—breach of contract, fraud, and
the like—were not particularly novel or complex.’” Id. at 7 (quoting 2009 U.S. Dist. LEXIS
8

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 9 of 11
62439, at *34). “Similarly,” the Special Master noted, the court in LaPeter stated that “[t]he
nature of this case, essentially a breach of contract case, was not exceptional,” and that the case
was “more akin to the ordinary personal injury case.” Id. (quoting 2007 WL 4287489, at *3).
The Court acknowledges that cases like Latta, which involved a controversial and
cutting-edge constitutional issue (marriage equality), or Community House, which concerned the
rights of homeless persons to be free from discrimination under the Fair Housing Act, are unique
in terms of their profile and potentially broad reaching impact. But the Special Master’s decision
was based on his own litigation experience as well as his understanding of vaccine cases
generally and this case in particular. His observation that while petitioners in vaccine cases need
not demonstrate a constitutional violation, such cases do involve “difficult issues of causation,”
is entitled to deference. Id. at 7. Further, as a case cited by the government suggests, it is not
unreasonable to compare vaccine cases to Latta and Community House in the sense that both
“allow a lawyer to bring superior skill or experience to bear to justify a higher hourly rate, either
through more efficient use of time or by more sophisticated understanding or development of
issues.” Newman v. City of Payette, No. 1:15-CV-00145-CWD, 2016 WL 1611430, at *4 (D.
Idaho, Apr. 21, 2016); Def.’s Mot. at 8.
In short, the Special Master acted well within his discretion when he identified $327 per
hour as the relevant local rate on the basis of a multi-factor analysis. The government’s
arguments to the contrary are without merit.
C. The Special Master’s Determination of the Forum Rate
The Special Master’s determination of the forum rate applicable to Mr. Webb’s services
was also within the bounds of reasonableness. In determining the forum rate, the Special Master
relied upon his decision in McCulloch, where he found a forum rate range of $350 to $425 per
hour to be a “reasonable rate range for attorneys with more than 20 years of experience,
depending on the special master’s judgment of the attorneys’ years of experience in practice and
in the Vaccine Program in particular, quality of advocacy in vaccine cases, and reputation in the
legal community and community at large.” Dec. on Fees at 10 (citing McCulloch, 2015 WL
5634323, at *17–*19.) The Special Master noted that the range was “designed to allow
considerable discretion” based on a “multi-factorial” analysis. Id. He determined that the forum
rate for 2014–15 for someone with Mr. Webb’s skills and experience was $387.50 per hour, the
median of the forum rate range established in McCulloch. Id. at 11. He based this determination
on the quality of Mr. Webb’s work, his experience litigating in the vaccine program, and the
rates awarded to Mr. Webb in the past.
For purposes of this case, the government does not take issue with the forum rate range
established in McCulloch. It argues, however, that the Special Master failed to articulate why
Mr. Webb’s hourly rate would lie in the median portion of that range rather than at $415 per
hour. In support of its claim, the government notes that in McCulloch, Special Master Gowen set
a rate of $415 per hour for attorney Kevin Conway, who had forty-five years of total experience,
twenty-six years in the vaccine program and had served on various vaccine-related committees.
Def.’s Mot. at 10–11. The Court finds this argument unpersuasive. The Special Master did not do
a head-to-head comparison of the skills and experience of Mr. Webb and Mr. Conway; nor was
9

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 10 of 11
he required to do so in order to set a reasonable rate for Mr. Webb. It was sufficient that he
clearly identified those aspects of a multi-factorial analysis that supported his decision to place
Mr. Webb in the median range. Moreover, the Court notes that Mr. Conway has 45 years of
overall experience as an attorney, compared to Mr. Webb’s 31 years, and that—as Special
Master Gowen’s decision in McCulloch reveals—Mr. Conway is also an adjunct professor of
law at Boston College. McCulloch, 2015 WL 5634323, at *19. Therefore, the Special Master’s
decision to assign an hourly forum rate to Mr. Webb that was some nine percent lower than the
hourly forum rate he assigned to Mr. Conway was an appropriate exercise of discretion by the
Special Master that the Court is in no position to second guess.
D. Special Master’s Comparison of the Local Rate and the Forum Rate
After determining that the appropriate local rate for Mr. Webb’s services was $327 per
hour, the Special Master compared that rate with the forum rate range of $350 to $425 per hour.
He concluded that “the difference between the local rates in Twin Falls, Idaho, and forum rates
in Washington, D.C. is not ‘very significant’ and therefore Mr. Webb’s hourly rate should be
determined by reference to forum rates.” Dec. on Fees at 9. The Court concludes that the Special
Master acted within his discretion in making this determination.
First, the Special Master’s decision is consistent with prior decisions addressing the
applicability of the Davis County exception. As the Special Master observed, courts that have
found the difference between local and forum rates to be “very significant” involved much
greater disparities than exists in this case. Thus, “in Davis County, the D.C. rate sought was
approximately 70% higher than local rates.” Id. 10 (citing Davis, 169 F.3d at 757). “In Avera, the
requested D.C. rate of $598 per hour was ‘nearly three times’ the local rate of $200—199%
greater.” Id. (citing Avera, 515 F.3d at 1350). And in Masias v. Sec’y of Health & Human
Servs., 634 F.3d 1283, 1286 (Fed. Cir. 2011), the Federal Circuit affirmed an award based on
local rates for Cheyenne, Wyoming, of $220 per hour in 2008, where the forum rate would have
been $350 per hour, a 59% difference.4
The Special Master noted that in this case—by contrast—there was only an 18.5%
difference between the local rate of $327 per hour and the $387.50 per hour forum rate
applicable to Mr. Webb’s services. Dec. on Fees at 9. He further noted that the $415 per hour
forum rate requested by petitioner was 26.9% higher than the $327 local rate and that even if he
applied the high end of the McCulloch forum rate range, $425 per hour, the difference would be
30%. Id. Comparing these differences to those at issue in Davis County, Avera, and Masias, he
concluded that whether the forum rate is $387.50, $415, or $425 per hour, the local rate “is
different, but not very significantly so, from the forum rate range in McCulloch.” Id. at 10
(emphasis in original).
The Special Master’s conclusion that the 18.5% difference between the local and forum
rates that applied to Mr. Webb’s services was not “very significant” for purposes of invoking the
4 In Masias, the petitioner did not challenge the special master’s determination that a 59%
difference was “very significant.”
10

Case 1:14-vv-00762-EDK Document 55 Filed 09/08/16 Page 11 of 11
Davis County exception was not an abuse of his discretion. The Davis County exception was
intended to be “limited” and apply only to the “occasional erratic result where the successful
petitioner would be vastly overcompensated.” 169 F.3d at 758–59. Such “vast
overcompensation” would have resulted if the forum rate had been used in Davis County because
it was 70% higher than the local rate, and also in Avera where the forum rate was nearly three
times as high as the local rate ($598 per hour as compared to $200 per hour). While the
difference here, whether viewed as a percentage (18.5%) or in absolute dollars ($60.50 per hour),
is not insignificant, it was not unreasonable for the Special Master to conclude—on balance—
that the use of the forum rate would not result in the “vast overcompensation” of counsel.
Finally, the Court is not persuaded by the government’s argument that the result of the
Special Master’s decision “is to essentially eliminate the Davis County exception entirely.”
Def.’s Mot. at 14. In considering the government’s challenges, the Court has been mindful of the
court of appeals’ observations in Hall: 1) that “[t]he special master is . . . intimately familiar with
the facts necessary to make the very significant difference determination;” 2) that “[t]he special
master is better equipped to decide whether or not there is a difference between the two rates and
the degree of that difference, as his or her ‘superior understanding of the litigation’—something
an appellate court lacks—is essential to this determination;” and 3) that “making this
determination is multifaceted and the experience of the special master is invaluable to it.” 640
F.3d at 1357. It is also mindful of the fact that the court of appeals has eschewed the use of bright
line rules in making the very significant difference determination. Id. (finding that a bright line
rule would be “stifling and impractical”).
In short, a special master’s decision in any one case cannot “eliminate” the Davis County
exception because each request for fees turns on its own specific facts and circumstances. And,
given the narrow scope of its review, the court of appeals’ admonitions, and the care with which
Special Master Gowen analyzed the issue in this case, the Court defers to the Special Master’s
determination that the rates in this case are not “very significantly different” and that use of the
forum rate will not “vastly overcompensate” counsel for his work.
CONCLUSION
On the basis of the foregoing, the government’s motion to review pursuant to RCFC
Vaccine Rule 23 is DENIED, and the Special Master’s award of attorneys’ fees is AFFIRMED.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
11

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_14-vv-00762-3
Date issued/filed: 2018-04-04
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 03/05/2018) regarding 97 DECISION Stipulation/Proffer ( Signed by Special Master Thomas L. Gowen.)(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 5, 2018
* * * * * * * * * * * * * * * * * * * UNPUBLISHED
KRISTINA GARRISON, *
* No. 14-762V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision on Damages;
AND HUMAN SERVICES, * Trivalent Influenza Vaccine;
* Narcolepsy; Cataplexy; Hypocretin.
Respondent. *
* * * * * * * * * * * * * * * * * * *
Curtis R. Webb, Twin Falls, ID, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC for respondent.
DECISION ON DAMAGES1
On August 22, 2014, Kristina Garrison (“petitioner” or “Ms. Garrison”) filed a petition
pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 et seq. (2006)
(“Vaccine Act”). Petitioner alleges that as a result of receiving a trivalent influenza (“flu”)
vaccination on October 28, 2011, she developed narcolepsy and cataplexy. See Petition at ¶ 1, 2
(ECF No. 1). Petitioner also alleges that she has, and will continue to suffer, effects of her
narcolepsy and cataplexy. Id. at ¶ 16.
On April 2, 2015, respondent filed a Rule 4(c) Report and a motion for a ruling on the
record, stating that while she “agrees that petitioner’s appropriate diagnosis is narcolepsy with
cataplexy,” she “concludes that there is insufficient scientific evidence to support a causal
relationship between the influenza vaccine and narcolepsy (with or without cataplexy).”
Respondent’s Report (“Resp. Report”) (ECF No. 21). Nevertheless, although respondent
recommends against compensation in this case, he “will not expend further resources to contest
entitlement in this matter.” Id. Respondent moved for a decision on entitlement based on the
record. Id. On October 27, 2015, I ruled that petitioner had established entitlement to
compensation based on a theory of causation in fact. Ruling on Entitlement (ECF No. 23).
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this unpublished ruling
contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States
Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the
ruling is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed
redacted version” of the ruling. Id. If neither party files a motion for redaction within 14 days, the ruling will be
posted on the court’s website without any changes. Id.

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 2 of 9
On March 2, 2018, respondent filed a Proffer on an award of compensation, which
indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF
No. 96). The Proffer is attached hereto as Exhibit A.
Consistent with the terms of the Proffer, I hereby award the following compensation
for all damages that would be available under 42 U.S.C. § 300aa-15(a):
A. A lump sum payment of $1,017,346.24 (representing compensation for lost past and
future earnings ($757,886.00); pain and suffering ($220,973.00); past unreimbursable
expenses ($19,450.24); and life care expenses for Year One ($19,037.00)), in the
form of a check payable to petitioner; and
B. An amount sufficient to purchase an annuity contract as described in the
Proffer, paid to the life insurance company from which the annuity will be
purchased.
The Clerk of the Court is directed to ENTER JUDGMENT in accordance with this
decision.2
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
2 Pursuant to Vaccine Rule 11(a), the entry of judgment is expedited by the parties jointly or separately filing notice
renouncing their right to seek review.
2

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 3 of 9
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KRISTINA GARRISON,
Petitioner,
v. No. 14-762V
Special Master Thomas L. Gowen
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 29, 2015, the Special Master issued a Ruling on Entitlement, concluding that
petitioner is entitled to compensation under the National Childhood Vaccine Injury Act of 1986
(“Vaccine Act”), as amended, 42 U.S.C. §§300aa-10 to -34. Respondent proffers that, based on
the Special Master’s entitlement decision and the evidence of record, petitioner should be
awarded the following items of compensation under the Vaccine Act.1
I. Items of Compensation
A. Life Care Items
The parties engaged life care planners Liz Kattman, BS, MS, and Laura Fox, MSN, BSN,
RN, CLCP, to provide an estimation of petitioner’s future vaccine injury-related needs.2 Based
1 The parties have no objection to the amount of the proffered award of damages. Assuming the
Special Master issues a damages decision in conformity with this proffer, the parties waive their
right to seek review of such damages decision. However, respondent reserves his right, pursuant
to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s October 29, 2015, entitlement
decision.
2 For the purposes of this proffer, the term “vaccine related” is as described in the Special
Master’s decision dated October 29, 2015, and only pertains to petitioner’s narcolepsy with
cataplexy and related sequelae.

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 4 of 9
on the planners evaluations, the parties’ have come to a joint consensus regarding appropriate
items of care. All items of compensation identified by the parties’ life care plan are supported by
the evidence, and are illustrated by the chart entitled Summary of Life Care Items, dated January
31, 2018, attached hereto as Tab A. Respondent proffers that petitioner should be awarded all
items of compensation set forth in the life care plan and illustrated by the chart attached at Tab
A. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, petitioner will never again be
gainfully employed. Therefore, respondent proffers that petitioner should be awarded lost past
and future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A).
Respondent proffers that the appropriate award for petitioner’s lost past and future earnings is
$757,886.00. This amount reflects that the award for lost future earnings has been reduced to net
present value. Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $220,973.00 for actual and
projected pain, suffering, and emotional distress. See 42 U.S.C. § 300aa-15(a)(4). This amount
reflects that the award for projected pain and suffering has been reduced to net present value.
Petitioner agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $19,450.24. Petitioner agrees.
2

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 5 of 9
E. Medicaid Lien
To the best of respondent’s knowledge and upon the representation of petitioner,
petitioner has never received Medicaid benefits. Accordingly, there is no Medicaid lien.
F. Attorneys’ Fees and Costs
This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to
reasonable attorneys’ fees and costs incurred following interim fees and costs awarded by
judgment entered on August 22, 2016, to be determined at a later date upon petitioner filing
substantiating documentation.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a combination of one-time lump sum payments and future annuity payments as
described below, and request that the Special Master’s decision and the Court’s judgment award
the following for all compensation3 available under 42 U.S.C. § 300aa-15(a).
Respondent proffers and petitioner agrees that an award of compensation include the
following elements:
A. A lump sum payment of $1,017,346.24, (representing compensation for lost past and
future earnings ($757,886.00), pain and suffering ($220,973.00), past unreimbursable expenses
($19,450.24), and life care expenses for Year One ($19,037.00)), in the form of a check payable
to petitioner; and
3 Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings and future projected pain and suffering and the
parties reserve the right to move the Court for appropriate relief.
3

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 6 of 9
B. An amount sufficient to purchase an annuity contract,4 subject to the conditions
described below, that will provide payments for the life care items contained in the life care plan,
as illustrated by the chart at Tab A, attached hereto, and paid to the life insurance company5 from
which the annuity will be purchased.6 Compensation for Year Two (beginning on the first
anniversary of the date of judgment) and all subsequent years shall be provided through
respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,
only so long as petitioner is alive at the time a particular payment is due. At the Secretary’s sole
discretion, the periodic payments may be provided to petitioner in monthly, quarterly, annual or
other installments. Annual totals set forth in the far-right column of the chart at Tab A describe
only the total yearly sum to be paid to petitioner and do not require that the payment be made in
one annual installment.
4 To satisfy the conditions set forth herein, in respondent’s discretion, respondent may
purchase one or more annuity contracts from one or more life insurance companies.
5 The Life Insurance Company must have a minimum of $250,000,000 capital and
surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company
must have one of the following ratings from two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-,
AA, AA+, or AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability
Rating: AA-, AA, AA+, or AAA.
6 Petitioner authorizes the disclosure of certain documents filed by the petitioners in this
case consistent with the Privacy Act and the routine uses described in the National Vaccine
Injury Compensation Program System of Records, No. 09-15-0056.
4

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 7 of 9
1. Growth Rate
Respondent proffers that a six percent (6%) growth rate should be applied to life care
items pertaining to insurance coverage, and a four percent (4%) growth rate should be applied to
all remaining life care items. Thus, the benefits illustrated in the chart at Tab A that are to be
paid through annuity payments should grow as follows: six percent (6%) compounded annually
from the date of judgment for insurance (illustrated in the first column of Tab A), and four
percent (4%) compounded annually from the date of judgment for all remaining items.
2. Life-Contingent Annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as petitioner is alive at the time that a particular payment is due.
Petitioner’s estate shall provide written notice to the Secretary of Health and Human Services
and the Life Insurance Company within twenty (20) days of petitioner’s death.
3. Guardianship Issues
Petitioner is a legally competent adult, and aforementioned payments will be made
directly to petitioner.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner: $1,017,346.24
B. An amount sufficient to purchase the annuity contract
described above in section II. B.
C. Reasonable final attorneys’ fees and litigation costs: TBD
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
5

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 8 of 9
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/ RYAN D. PYLES
RYAN D. PYLES
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-9847
DATED: March 2, 2018
6

Case 1:14-vv-00762-EDK Document 103 Filed 04/04/18 Page 9 of 9
TAB A
Pet. Kristina Garrison
D.O.B. 12/13/1972
DATE: 01/31/18
TIME: 06:58 PM
SUMMARY OF LIFE CARE ITEMS - RESPONDENT'S LIFE CARE PLAN dated November 16, 2017 - As Modified January 31, 2018
ITEM OF CARE Insurance Medications Home Transportation TOTALS TOTALS OF
Services of Items 4.0% ITEMS
with a 4.0% & APPLYING
Growth Rate THE GROWTH
GROWTH RATE 6.0% 4.0% 4.0% 4.0% RATE
AGE YEAR
46 2018 2,520.00 9,346.00 640.00 3,103.96 19,037 19,037
47 2019 2,520.00 9,346.00 0.00 31.96 13,610 14,154
48 2020 2,520.00 9,346.00 0.00 31.96 13,610 14,721
49 2021 2,520.00 9,346.00 0.00 31.96 13,610 15,309
50 2022 2,520.00 9,346.00 0.00 31.96 12,038 14,083
51 2023 2,520.00 9,346.00 0.00 31.96 12,038 14,646
52 2024 2,520.00 9,346.00 0.00 31.96 12,038 15,232
53 2025 2,520.00 9,346.00 0.00 31.96 12,038 15,841
54 2026 2,520.00 9,346.00 0.00 31.96 12,038 16,475
55 2027 2,520.00 9,346.00 0.00 31.96 12,038 17,134
56 2028 2,520.00 9,346.00 0.00 31.96 12,038 17,819
57 2029 2,520.00 9,346.00 0.00 31.96 12,038 18,532
58 2030 2,520.00 9,346.00 0.00 31.96 12,038 19,273
59 2031 2,520.00 9,346.00 0.00 31.96 12,038 20,044
60 2032 2,520.00 9,346.00 0.00 31.96 12,038 20,846
61 2033 2,520.00 9,346.00 0.00 31.96 12,038 21,680
62 2034 2,520.00 9,346.00 0.00 31.96 12,038 22,547
63 2035 2,520.00 9,346.00 0.00 31.96 12,038 23,449
64 2036 2,520.00 9,346.00 0.00 31.96 12,038 24,387
65 2037 2,520.00 9,346.00 0.00 31.96 12,038 25,362
66 2038 912.00 9,346.00 0.00 31.96 10,430 22,853
67 2039 912.00 9,346.00 0.00 31.96 10,430 23,767
68 2040 912.00 9,346.00 0.00 31.96 10,430 24,718
69 2041 912.00 9,346.00 0.00 31.96 10,430 25,707
70 2042 912.00 9,346.00 0.00 31.96 10,430 26,735
71 2043 912.00 9,346.00 0.00 31.96 10,430 27,805
72 2044 912.00 9,346.00 0.00 31.96 10,430 28,917
73 2045 912.00 9,346.00 0.00 31.96 10,430 30,073
74 2046 912.00 9,346.00 0.00 31.96 10,430 31,276
75 2047 912.00 9,346.00 0.00 31.96 10,430 32,527
76 2048 912.00 9,346.00 0.00 31.96 10,430 33,829
77 2049 912.00 9,346.00 0.00 31.96 10,430 35,182
78 2050 912.00 9,346.00 0.00 31.96 10,430 36,589
79 2051 912.00 9,346.00 0.00 31.96 10,430 38,052
80 2052 912.00 9,346.00 0.00 31.96 10,430 39,575
81 2053 912.00 9,346.00 0.00 31.96 10,430 41,158
82 2054 912.00 9,346.00 0.00 31.96 10,430 42,804
83 2055 912.00 9,346.00 0.00 31.96 10,430 44,516
66,816 355,148 640 4,286 440,213 956,653
15.18% 80.68% 0.15% 0.97% 100.00%
This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990
Garrison RESP LCP dated 11 16 17 REV 4 01 31 18
PAGE 1