Jack Backes v. HHS - Influenza, rash (2015)

Jack Backes, born October 4, 1939, filed a petition on September 18, 2014, alleging that an influenza vaccine administered on November 27, 2012, caused him to develop a rash four to five days later. Mr.

Backes had a history of rashes prior to the vaccination, including one noted by his personal physician, Dr. James Michelson, on October 23, 2012, along the edge of his knee braces, which was diagnosed as contact dermatitis.

Mr. Backes saw Dr.

Michelson again on December 24, 2012, complaining of a rash that began four to five days after the flu shot, with itching on his back and buttock. At that time, the rash was resolving, though one lesion on his right buttock was enlarged.

Dr. Michelson questioned whether the problem was due to an allergy or xerosis and noted a history of infected cysts.

On January 26, 2013, Mr. Backes reported to Dr.

Michelson the onset of hives and rash on his chest, abdomen, left shoulder, and buttocks one to two months earlier, stating they started soon after the flu shot. The diagnosis was allergic dermatitis.

The remainder of Mr. Backes's medical records did not mention a rash.

Dr. Michelson provided an affidavit on September 5, 2014, stating the rash was due to the flu vaccination but did not specify its duration.

The primary issue in the case was whether the alleged vaccine reaction lasted longer than the six months required by the National Childhood Vaccine Injury Act. Mr.

Backes's counsel attempted to contact Dr. Michelson to confirm the duration of the rash without success.

Eventually, Dr. Michelson informed Mr.

Backes's counsel that he could not support the claim that the rash lasted more than six months. Consequently, on February 5, 2015, Special Master Laura D.

Millman granted Mr. Backes's oral motion to dismiss the case, finding that Mr.

Backes failed to prove by a preponderance of the evidence that his alleged vaccine reaction lasted more than six months, as required by 42 U.S.C. § 300aa-11(c)(1)(D)(i). The petition was dismissed.

Subsequently, on March 6, 2015, the parties stipulated to an award of attorneys' fees and costs. Special Master Millman awarded Jack Backes $7,719.24, consisting of $7,150.00 in attorneys' fees and $569.24 in attorneys' costs, payable jointly to Mr.

Backes and The Burchett Law Firm.