VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-00871
Package ID: USCOURTS-cofc-1_14-vv-00871
Petitioner: Jack Backes
Filed: 2014-09-18
Decided: 2015-03-06
Vaccine: influenza
Vaccination date: 2012-11-27
Condition: rash
Outcome: compensated
Award amount USD: 7719

AI-assisted case summary:
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.

Theory of causation field:
Petitioner Jack Backes, age 73, received an influenza vaccine on November 27, 2012. He alleged a rash began four to five days later, diagnosed as allergic dermatitis. The public decision does not describe the specific medical theory connecting the vaccine to the rash or the mechanism. Petitioner's counsel was unable to obtain confirmation from Dr. James Michelson, petitioner's physician, that the rash lasted more than six months, a statutory requirement for compensation under the National Childhood Vaccine Injury Act. Medical records did not refer to a rash after December 24, 2012. Petitioner's counsel made an oral motion to dismiss, which Special Master Laura D. Millman granted on February 5, 2015, finding petitioner failed to prove the rash lasted more than six months. The case was dismissed for failure to meet statutory requirements. On March 6, 2015, Special Master Millman awarded $7,719.24 for attorneys' fees and costs based on a stipulation between petitioner Jack Backes and respondent, payable jointly to petitioner and The Burchett Law Firm.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-00871-0
Date issued/filed: 2015-02-26
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 02/05/2015) regarding 14 DECISION of Special Master Signed by Special Master Laura D Millman. (tlj) Copy to parties.
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Case 1:14-vv-00871-UNJ Document 19 Filed 02/26/15 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-871V
February 5, 2015
Not to be Published
***************************************
JACK BACKES, *
*
Petitioner, * Influenza (flu) vaccine; rash; no proof
* alleged reaction lasted more than
v. * six months; petitioner’s motion
* to dismiss granted
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
***************************************
Brian L. Burchett, San Diego, CA, for petitioner.
Camille M. Collett, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION1
On September 18, 2014, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that an influenza (“flu”) vaccine
administered on November 27, 2012, caused him to suffer from a rash four to five days later.
On October 23, 2014, the undersigned held the initial telephonic status conference with
counsel. During the conference, petitioner’s attorney recognized there was an issue whether
1 Because this decision contains a reasoned explanation for the special master’s action in this case, the
special master 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, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioners have 14 days to identify and move to
redact such information prior to the document’s disclosure. If the special master, upon review, agrees that
the identified material fits within the categories listed above, the special master shall redact such material
from public access.

Case 1:14-vv-00871-UNJ Document 19 Filed 02/26/15 Page 2 of 4
petitioner’s alleged vaccine reaction of a rash lasted more than six months. Petitioner’s alleged
reaction would have had to last beyond June 2, 2013, to satisfy the statutory requirement of more
than six months of sequelae. 42 U.S.C. § 300aa-11(c)(1)(D)(i).
On November 19, 2014, the undersigned held another telephonic status conference with
counsel. Petitioner’s counsel said he had been trying to speak with petitioner’s doctor, Dr. James
Michelson, about the duration of petitioner’s rash, without success.
On December 18, 2014, the undersigned held another telephonic status conference with
counsel. Petitioner’s counsel still had not succeeded in speaking with Dr. Michelson about the
duration of petitioner’s rash, but petitioner said Dr. Michelson was writing a letter.
On February 5, 2015, the undersigned held another telephonic status conference with
counsel. Petitioner’s counsel said Dr. Michelson had contacted him but could not support the
claim that petitioner’s rash lasted more than six months. Petitioner’s counsel made an oral
motion to dismiss this case.
The undersigned GRANTS petitioner’s motion and DISMISSES this case for failure to
prove his alleged vaccine reaction lasted more than six months. 42 U.S.C. §§ 300aa-
11(c)(1)(D)(i); 300aa-13(a)(1)(A).
FACTS
Petitioner was born on October 4, 1939.
Petitioner has a history of rashes dating before the flu vaccination at issue. On October
23, 2012, Dr. James Michelson, petitioner’s personal care physician, noted that petitioner had a
rash along the edge of his knee braces. Med. recs. Ex. 2, at 283. Petitioner had used these braces
for years, but this was his first rash. Id. Petitioner could not recall any trigger for the rash except
doxycycline around the time of the onset of the rash. Id. It did not itch. Id. Dr. Michelson
diagnosed petitioner with a rash that appeared to be contact dermatitis. Id.
On November 27, 2012, petitioner received flu vaccine. Ex. 1, at 1.
On December 24, 2012, petitioner saw Dr. Michelson, complaining of a rash that began
four to five days after he received flu vaccine. Med. recs. Ex. 2, at 275. He had itching on his
back and buttock and had scratched the area. Id. The rash was resolving, but one lesion on the
right buttock was enlarged. Id. Dr. Michelson questioned whether petitioner had skin lesions
and whether his skin problem was due to an allergy or xerosis (abnormally dry skin). Id.
Petitioner’s symptoms had nearly resolved. Id. Dr. Michelson noted in a record, dated
December 22, 2012, that petitioner had a history of infected cysts and reported developing a new
cyst in the buttock area. Id.
2

Case 1:14-vv-00871-UNJ Document 19 Filed 02/26/15 Page 3 of 4
On January 26, 2013, petitioner saw Dr. Michelson. Id. at 269. Petitioner had the onset
of hives and rash one to two months earlier on his chest, abdomen, left shoulder, and buttocks.
Id. He said they started soon after the flu shot. Id. The diagnosis was allergic dermatitis. Id.
The remainder of petitioner’s medical records do not refer to a rash.
Dr. Michelson wrote an affidavit, dated September 5, 2014, stating that petitioner’s rash
was due to his flu vaccination, but Dr. Michelson did not state how long the rash lasted. Ex. 3, at
1.
DISCUSSION
To satisfy his burden of proving causation in fact, petitioner must prove by preponderant
evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y
of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). In Althen, the Federal Circuit quoted its opinion
in Grant v. Secretary of Health and Human Services, 956 F.2d 1144, 1148 (Fed. Cir. 1992):
A persuasive medical theory is demonstrated by “proof of a logical
sequence of cause and effect showing that the vaccination was the
reason for the injury[,]” the logical sequence being supported by
“reputable medical or scientific explanation[,]” i.e., “evidence in
the form of scientific studies or expert medical testimony[.]”
Althen, 418 F.3d at 1278.
Without more, “evidence showing an absence of other causes does not meet petitioners’
affirmative duty to show actual or legal causation.” Grant, 956 F.2d at 1149. Mere temporal
association is not sufficient to prove causation in fact. Id. at 1148.
Petitioner must show not only that but for flu vaccination, he would not have had a rash,
but also that the vaccine was a substantial factor in causing his rash. Shyface v. Sec’y of HHS,
165 F.3d 1344, 1352 (Fed. Cir. 1999).
In addition, the Vaccine Act requires that the vaccine reaction or its sequelae last more
than six months. It requires that petitioner submit evidence that the person who suffered a
vaccine injury “suffered the residual effects or complications of such illness, disability, injury, or
condition for more than 6 months after the administration of the vaccine.” 42 U.S.C. § 300aa-
11(c)(1)(D)(i). Petitioner admits that he cannot prove the rash or its sequelae lasted more than
six months.
3

Case 1:14-vv-00871-UNJ Document 19 Filed 02/26/15 Page 4 of 4
The Vaccine Act does not permit the undersigned to rule for petitioner based on his
claims alone, “unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). Dr. Michelson’s letter does not substantiate that petitioner’s alleged vaccine reaction
lasted more than six months. Thus, petitioner has not made a prima facie case of causation.
The undersigned GRANTS petitioner’s motion and DISMISSES this case for
petitioner’s failure to prove by a preponderance of the evidence the matters required in the
petition by § 300aa-11(c)(1), i.e., that his alleged vaccine reaction lasted more than six months.
42 U.S.C. § 300aa-13(a)(1)(A).
CONCLUSION
This petition is DISMISSED. In the absence of a motion for review filed pursuant to
RCFC, Appendix B, the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
February 5, 2015 /s/ Laura D. Millman
DATE Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
4

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DOCUMENT 2: USCOURTS-cofc-1_14-vv-00871-1
Date issued/filed: 2015-03-30
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 03/06/2015) regarding 21 DECISION Fees Stipulation/Proffer Signed by Special Master Laura D Millman. (tlj) Copy to parties.
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Case 1:14-vv-00871-UNJ Document 23 Filed 03/30/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-871V
Filed: March 6, 2015
Not for Publication
*************************************
JACK BACKES, *
*
Petitioner, * Attorneys’ fees and costs decision based on
* stipulation of fact
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Brian L. Burchett, San Diego, CA, for petitioner.
Camille M. Collett, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On March 4, 2015, the parties filed a stipulation of fact in which they agreed on an
appropriate amount for attorneys’ fees and costs in this case.
In accordance with General Order #9, petitioner asserts that he did not incur any costs in
pursuit of his petition. Petitioner submitted his draft application for attorneys’ fees and costs to
respondent. Petitioner requests $7,719.24, consisting of $7,150.00 in attorneys’ fees and $569.24
in attorneys’ costs. Respondent does not object to this amount. The undersigned finds this
1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made
available to the public unless they contain trade secrets or commercial or financial information that is
privileged and confidential, or medical or similar information whose disclosure would constitute a clearly
unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and
move to redact such information prior to the document=s disclosure. If the special master, upon review,
agrees that the identified material fits within the banned categories listed above, the special master shall
redact such material from public access.

Case 1:14-vv-00871-UNJ Document 23 Filed 03/30/15 Page 2 of 2
amount to be reasonable. Accordingly, the court awards $7,719.24, representing reimbursement
for attorneys’ fees and costs. The award shall be in the form of a check payable jointly to
petitioner and The Burchett Law Firm for $7,719.24.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: March 6, 2015 s/ Laura D. Millman
Laura D. Millman
Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2