VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-01020 Package ID: USCOURTS-cofc-1_14-vv-01020 Petitioner: Steven McGehee Filed: 2014-10-21 Decided: 2016-07-06 Vaccine: influenza Vaccination date: 2011-10-24 Condition: Guillain-Barré Syndrome (“GBS”), transverse myelitis (“TM”), and/or a peripheral neuropathy Outcome: compensated Award amount USD: 150000 AI-assisted case summary: Steven McGehee filed a petition for vaccine compensation on October 21, 2014, alleging that the influenza vaccine he received on or about October 24, 2011, caused him to suffer Guillain-Barré Syndrome (GBS), transverse myelitis (TM), and/or a peripheral neuropathy, with residual effects lasting more than six months. The influenza vaccine is listed on the Vaccine Injury Table. Respondent denied that the vaccine caused petitioner's alleged injuries. The parties reached a settlement and filed a joint stipulation. The Special Master adopted the stipulation, awarding Steven McGehee a lump sum payment of $150,000.00 for all damages. The decision was issued on July 6, 2016. Petitioner was represented by Nancy Routh Meyers of Ward Black Law, and Respondent was represented by Glenn A. MacLeod of the U.S. Department of Justice. Special Master Christian J. Moran issued the decision. Theory of causation field: Petitioner Steven McGehee received an influenza vaccine on or about October 24, 2011. He alleged this vaccine caused Guillain-Barré Syndrome (GBS), transverse myelitis (TM), and/or a peripheral neuropathy, with residual effects lasting more than six months. The influenza vaccine is listed on the Vaccine Injury Table. Respondent denied causation. The parties entered into a joint stipulation to settle the case. The stipulation stated that respondent denied causation, but agreed to a settlement. The Special Master adopted the stipulation. Steven McGehee was awarded a lump sum of $150,000.00 for all damages. The decision was issued by Special Master Christian J. Moran on July 6, 2016. Petitioner was represented by Nancy Routh Meyers, and Respondent was represented by Glenn A. MacLeod. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_14-vv-01020-0 Date issued/filed: 2015-12-03 Pages: 6 Docket text: PUBLIC ORDER/RULING (Originally filed: 11/6/2015) regarding 42 Findings of Fact & Conclusions of Law. Signed by Special Master Christian J. Moran. (tpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:14-vv-01020-UNJ Document 43 Filed 12/03/15 Page 1 of 6 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * STEVEN MCGEHEE, * * No. 14-1020V Petitioner, * Special Master Christian J. Moran * v. * Filed: November 6, 2015 * SECRETARY OF HEALTH * Onset of neurologic problems AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * Nancy R. Meyers, Ward Black Law, Greensboro, NC, for petitioner; Glenn A. MacLeod, United States Dep’t of Justice, Washington, DC, for respondent. RULING FINDING FACTS1 The petitioner, Steven McGehee, alleges that an influenza vaccine injured his nerves. Mr. McGehee more specifically alleges he suffered transverse myelitis or polyradiculitis. Pet. ¶¶ 8-9, 11. He seeks compensation pursuant to the National Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa–10 through 34 (2012). The Secretary maintains that Mr. McGehee is not entitled to compensation for several reasons. The Secretary asserts that Mr. McGehee has not established that he suffers from either transverse myelitis or polyradiculitis. Resp’t’s Rep., filed April 6, 2015, at 7-9. Additionally and importantly for the present ruling, the Secretary and Mr. McGehee disagree about when Mr. McGehee first started to 1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Case 1:14-vv-01020-UNJ Document 43 Filed 12/03/15 Page 2 of 6 suffer symptoms associated with a neurologic problem. To resolve these factual disputes, a hearing was held to receive testimony from percipient witnesses. See Campbell v. Sec'y of Health & Human Servs., 69 Fed. Cl. 775, 779-80 (2006). Mr. McGehee and a former girlfriend testified.2 Following the submission of one additional document, the matter is ready for adjudication. Basic Chronology of Undisputed Facts Mr. McGehee was born in February 1965. At the age of 32, he was diagnosed with an enlarged prostate. Exhibit 3 at 2. In 2011, Mr. McGehee was working as an electrician at Moses Cone Hospital. Exhibit 4 at 4, Tr. 35. At Moses Cone, Mr. McGehee received a dose of the flu vaccine on October 24, 2011. Exhibit 1 at 3. A few months before Mr. McGehee received the flu vaccine, he began dating a woman who also worked at Moses Cone. Tr. 13, 25, 105. Mr. McGehee and his former girlfriend recall that he had burning feelings in his saddle region, particularly after intimate relations. Tr. 13-14, 108, 114. They both recalled that Mr. McGehee’s problem was present by Thanksgiving 2011. Id. The relationship between Mr. McGehee and his girlfriend ended shortly after his birthday in February 2012. The burning in his saddle region and the way that he responded to that pain contributed to the end of the relationship. Tr. 13-15, 20, 36-38, 43, 122. Mr. McGehee saw a doctor for the first time after receiving the flu vaccine on December 20, 2011. Exhibit 2 at 10. His next doctor’s visit, which was on February 21, 2012, was similar. Id. at 9. At both appointments, Mr. McGehee told Dr. Fagan that he was suffering from head congestion. Id. at 9-10. Mr. McGehee did not tell Dr. Fagan about any pain in his saddle region at either appointment. On March 19, 2012, Mr. McGehee returned to Dr. Fagan. On this occasion, Dr. Fagan recorded that Mr. McGehee “complains of a burning pain involving his scrotal and pelvic area as well as his left flank over the past one to 2 weeks. He has burning on urination at times[.]” Exhibit 2 at 8. 2 The name of Mr. McGehee’s former girlfriend is not relevant. 2 Case 1:14-vv-01020-UNJ Document 43 Filed 12/03/15 Page 3 of 6 Mr. McGehee provided a relatively similar history to a urologist on April 30, 2012. Dr. Dahlstedt recorded “[o]ver past 2 months or so, he has had persistent burning in his perineum and scrotal area[.]” Exhibit 3 at 1. Dr. Fagan’s March 19, 2012 record and Dr. Dahlstedt’s April 30, 2012 record point to an onset of burning at around the end of February or beginning of March 2012. In contrast, Mr. McGehee’s memory places the onset at least three months earlier, November 2011. This is the crux of the dispute: when did Mr. McGehee first experience problems burning in his saddle region. Standards for Adjudication The standards for resolving findings of fact are sufficiently established that they need not be repeated here. For a detailed account, see Bayless v. Sec'y of Health & Human Servs., No. 08-679V, 2015 WL 638197, at *2 (Fed. Cl. Spec. Mstr. Jan. 15, 2015). Assessment of Witnesses Both Mr. McGehee and his former girlfriend were credible witnesses. They were willing to provide information about what is usually a private topic. Mr. McGehee responded to questions as best as his memory would allow. His former girlfriend appeared to answer questions spontaneously and without pretense. Analysis I find that Mr. McGehee began to feel burning in his saddle region around November 15, 2011. The witnesses’ oral testimony was sufficiently compelling to overcome the presumption that attaches to medical records created contemporaneously with the events that they are describing. The finding that the burning in Mr. McGehee’s saddle region started around November 15, 2011 is based on the chronology of the dating relationship between Mr. McGehee and his former girlfriend. They had had sex without any problems for a few weeks before sex became very painful for him. Tr. 108. Although neither was sure when intercourse was first painful, both stated that by Thanksgiving, sex was painful. Tr. 14, 113. Ejaculating increased Mr. McGehee’s pain, but Mr. McGehee also had pain apart from intercourse. Tr. 13-15. After at least one dramatic episode, Mr. McGehee’s girlfriend urged him to go to the emergency room. Tr. 37. Based upon her training as a nurse, she 3 Case 1:14-vv-01020-UNJ Document 43 Filed 12/03/15 Page 4 of 6 believed that the burning sensation originated in his neurologic system. Tr. 15-16; see also Tr. 23 (experience as a nurse). Mr. McGehee refused to seek medical assistance because he was embarrassed because of the personal nature of his problems. Tr. 14, 36. The burning in Mr. McGehee’s saddle region was his primary, but not exclusive, problem. He also felt burning in his feet. Tr. 35-36. Whether the burning started in his feet and radiated up to his pelvis or whether the burning started in his pelvis and radiated down is not clear. See Tr. 20, 28, 36. Mr. McGehee also frequently experienced pain or burning when urinating. Tr. 21. Less frequently, he experienced a sensation of rectal fullness. Id. There was also some problem in his fingertips. Tr. 28. Overall, Mr. McGehee had good days and bad days. Tr. 29. Although the onset of Mr. McGehee’s problems was in November 2011, he did not tell Dr. Fagan about his problems when Mr. McGehee saw him for sinus congestion in December 2011 and February 2012. Exhibit 2 at 9-10, Tr. 49, 73-75. Again, Mr. McGehee’s embarrassment made him reluctant to confide in Dr. Fagan. In his testimony, Mr. McGehee recognized that in hindsight, he should have sought medical attention months earlier when his girlfriend suggested that plan. Tr. 47. Mr. McGehee finally disclosed the burning in his saddle region to Dr. Fagan in March 2012. Exhibit 2 at 8. The Secretary relies upon the portion of the record that states Mr. McGehee “complains of a burning pain involving his scrotal and pelvic area . . . over the past one to 2 weeks.” Exhibit 2 at 8. This record is presumptively accurate. Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). However, in the hearing, Mr. McGehee provided a persuasive basis for finding that Dr. Fagan’s record was not accurate. Mr. McGehee explained that he told a woman who worked in Dr. Fagan’s office as a nurse that he was having a burning problem in his saddle region for four or five months. The woman, according to Mr. McGehee’s recollection, told him that he should have sought medical attention after a week or two. Tr. 44-48, 83, 118. It appears that the retort from the nurse may have influenced the history that Mr. McGehee gave to Dr. Fagan. By all accounts, Mr. McGehee was already seeking medical attention for a private matter reluctantly and then he perceived that the nurse criticized him. To avoid a similar rebuke from the doctor, Mr. McGehee told Dr. Fagan about his problems and supplied a chronology that 4 Case 1:14-vv-01020-UNJ Document 43 Filed 12/03/15 Page 5 of 6 aligned with the nurse’s expectation.3 Thus, it is more-likely-than-not that Dr. Fagan accurately recorded inaccurate information. In any event, Dr. Fagan’s March 19, 2012 record is one record that must be placed into context with other evidence. This other evidence includes the testimony from Mr. McGehee and his former girlfriend, which, as described above, was compelling. In addition, in March 2013, Mr. McGehee told Dr. Willis that he received a flu shot before the start of his symptoms, exhibit 4 at 4, and in April 2013, Mr. McGehee told Dr. Runheim that he was having pain for 18 months. Exhibit 5 at 2, see also Tr. 54-55, 134-35. While Mr. McGehee was not providing a history of contemporaneous events in this portion of Dr. Willis’s and Dr. Runheim’s record, see Shapiro v. Sec’y of Health & Human Servs., 101 Fed. Cl. 532, 539 (2011) (discussing meaning of contemporaneous), mot. for recons. denied after remand, 105 Fed. Cl. 353 (2012), aff’d, 503 F. Appx. 952 (Fed. Cir. 2013), Mr. McGehee’s reports to these doctors provide some ancillary support for his testimony. Conclusion The parties are ordered to provide these findings of fact to any expert whom they have retained to testify. Expert opinion inconsistent with these findings of fact is not likely to be persuasive. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that the special master did not abuse his discretion in refraining from conducting a hearing when the petitioner’s expert “based his opinion on facts not substantiated by the record”); Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“When an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury’s verdict.”); Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1376 n.6 (Fed. Cir. 1994) (“An expert opinion is no better than the soundness of the reasons supporting it.”); see also Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993) (the assumption of an expert about the accuracy of a fact witness’s testimony does not “substantiate” the fact witness’s testimony). 3 Mr. McGehee testified that he told Dr. Fagan that his problems had been going on for months. Tr. 83-84. However, it seems rather unlikely that Dr. Fagan would hear “four or five months,” but write “one or two weeks.” 5 Case 1:14-vv-01020-UNJ Document 43 Filed 12/03/15 Page 6 of 6 A status conference is set, sua sponte, for December 9, 2015, at 2:00 P.M. Eastern Time. The parties should be prepared to propose the next step in this case. Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-6360. IT IS SO ORDERED. s/ Christian J. Moran Christian J. Moran Special Master 6 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_14-vv-01020-1 Date issued/filed: 2016-07-06 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 6/15/16) regarding 53 DECISION Stipulation/Proffer. Signed by Special Master Christian J. Moran. (dh) Copy to parties. -------------------------------------------------------------------------------- Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS * * * * * * * * * * * * * * * * * * * * * STEVEN MCGEHEE, * * No. 14-1020V Petitioner, * Special Master Christian J. Moran * v. * Filed: June 15, 2016 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) vaccine; AND HUMAN SERVICES, * Guillain-Barré syndrome (“GBS”); * transverse myelitis (“TM”); peripheral Respondent. * neuropathy. * * * * * * * * * * * * * * * * * * * * * Nancy Routh Meyers, Ward Black Law, Greensboro, NC, for Petitioner; Glenn A. MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION1 On June 15, 2016, the parties filed a joint stipulation concerning the petition for compensation filed by Steven McGehee on October, 21, 2014. In his petition, petitioner alleged that the influenza vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on or about October 24, 2011, caused him to suffer Guillain-Barré Syndrome (“GBS”), transverse myelitis (“TM”), and/or a peripheral neuropathy. Petitioner further alleges that he suffered the residual effects of this injury for more than six months. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Respondent denies that the influenza vaccine caused petitioner to suffer GBS, TM, and/or a peripheral neuropathy or any other injury. 1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 2 of 7 Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Damages awarded in that stipulation include: A lump sum payment of $150,000.00 in the form of a check payable to petitioner, Steven McGehee. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 14-1020V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Shannon Proctor, at (202) 357-6360. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge. 2 Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ************************** * * * STEVEN T. MCGEHEE, * * Petitioner, * * V. * No. 14-1020V (ECF) * SPECIAL MASTER * CHRISTIA J. MORA SECRETA RY OF HEALT H * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * STIPULATIO The parties hereby stipulate to the fol lowing matters: I. Petitioner filed a petition for vaccine compensation under the ational Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I0 to 34 (the ··vaccine Program'"). The petition seeks compensation for injuries allegedly related to petitioner"s receipt of trivalent innuenza (''flu"") vaccine. which vaccine is contained in the Vaccine Injury Table (the ··Table""). 42 C.F.R. §I 00.3(a). 2. Petitioner received the flu vaccine on or about October 24, 20 I I. 3. The vaccine was administered within the United States. 4. Petitioner alleges that he suffered Guillain-Barre syndrome (. . GBS""). Transverse Myelitis ("TM'"), and/or a peripheral neuropathy as a consequence of the nu immunization he received on or about October 24, 20 I I, and further alleges that he suffered the residual effects of this injury for more than six months. Page I of 5 Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 4 of 7 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. 6. Respondent denies that the flu vaccine caused petitioner·s alleged GBS, TM and/or peripheral neuropathy or any other injury and further denies that his current disabilities are a sequela of a vaccine-related injury. 7. Maintaining their above-stated positions. the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation. and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of$150,000.00 in the form ofa check payable to petitioner, representing compensation for all damages that would be available under 42 U.S.C. § 300aa-I 5(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-2 I (a)( I). and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys· fees and costs incurred in proceeding upon this petition. I 0. Petitioner and his attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-I 5(g), including State compensation programs, insurance policies. Page 2 of5 Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 5 of 7 Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or entities that provide health services on a prepaid basis. 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 will be made in accordance with 42 U.S.C. § 300aa-I 5(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorneys further agree and stipulate that, except for any award for attorney's fees and litigation costs, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-l 5(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in his individual capacity, and on behalf of his heirs. executors. administrators. successors. and assigns. does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the United States Court of Federal Claims. under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-I0 et seq .. on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resulted from, the nu vaccination administered on or about October 24, 2011. as alleged by petitioner in a petition for vaccine compensation filed on or about October 21, 2014, in the United tates Court of Federal Claims as petition No. I 4- l 020V. Page 3 of5 Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 6 of 7 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behal fof either or both of the pa11ies. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the United States Cou11 of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or do any act or thing other than is herein expressly stated and clearly agreed to. The parties fu1ther agree and understand that the award described in this Stipulation may reflect a compromise of the parties· respective positions as to liability and/or amount of damages, and futther, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Hum an Services that the flu vaccine caused petitioner· s alleged G BS, TM and/or peripheral neuropathy or any other injury or any of his current disabilities. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION Page 4 of5 Case 1:14-vv-01020-UNJ Document 57 Filed 07/06/16 Page 7 of 7 Respectfully submitted, PETITIONER: STEVEN T. MCGEHEE ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE PETITIONER: OF TIIE ATTORNEY GENERAL: ~~ ~~ERS,ESQ. WARD BLACK LAW, P.A. Acting Deputy Director 208 West Wendover Avenue Torts Branch Greensboro, NC 27401 Civil Division Tel: (336) 333-2244 U.S. Department of Justice P. 0. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 ATTORNEY OF RECORD FOR RESPONDENT: oit&IJ#I( NA AIR, Director, Division of Injury Senior Trial Counsel Compensation Programs Torts Branch, Civil Division Healthcare Systems Bureau U.S. Department of Justice Health Resources and Services Administration P.O. Box 146 U.S. Department of Health Benjamin Franklin Station and Human Services Washington, D.C. 20044-0146 5600.Fishers Lane Tel: (202} 616-4122 Parklawn Building, Stop-08Nl46B Rockville, MD 20857 Page 5 ofS