VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-01104
Package ID: USCOURTS-cofc-1_14-vv-01104
Petitioner: Nickolas Ries
Filed: 2014-11-13
Decided: 2015-10-02
Vaccine: influenza
Vaccination date: 2012-12-11
Condition: death
Outcome: dismissed
Award amount USD: 25450

AI-assisted case summary:
Kristina Ries filed a petition on November 13, 2014, on behalf of her minor child, Nickolas Ries, alleging that Nickolas died as a result of an adverse reaction to an influenza vaccine received on December 11, 2012. No medical records were filed with the initial petition. Ms. Ries later filed an affidavit and medical records on December 3, 2014, followed by a statement of completion on December 16, 2014. The respondent filed a report on February 3, 2015, concluding that the petitioner failed to meet the criteria for a Vaccine Table injury and could not prove by a preponderance of the evidence that the influenza vaccine caused Nickolas's death, nor did she establish a prima facie case under the Althen standard for off-Table claims. The petitioner was ordered to file an expert report by April 20, 2015, and subsequently filed a report from Dr. David Axelrod on May 20, 2015. Following a status conference, a deadline was set for the respondent to file a responsive report. However, before the respondent's report was due, Ms. Ries moved to dismiss her petition on July 16, 2015. She stated that an investigation of the facts and science, as medical records were received, demonstrated that she would likely be unable to meet her burden of proof to establish entitlement to compensation. The Special Master, Christian J. Moran, analyzed the case, noting that compensation requires proof of a "Table Injury" or that the vaccine actually caused the injury. The record did not contain evidence of a Table Injury. Because the medical records did not support the claim, a medical opinion was required. Although an opinion from Dr. Axelrod was provided, the petitioner determined she could not meet her burden of proof. Consequently, the petition was dismissed for insufficient proof on September 17, 2015. Subsequently, on October 2, 2015, Special Master Christian J. Moran addressed attorneys' fees and costs. A stipulation of fact concerning final attorneys' fees and costs was filed on September 8, 2015. The petitioner agreed to seek $25,450.00 for attorneys' fees and costs after informal discussions with the respondent regarding objections. The respondent found the application reasonable. The Special Master awarded a lump sum of $25,450.00, payable to the petitioner and her attorney, Van Cott & Talamante, PLLC, for attorneys' fees and litigation costs. This award was made because the petitioner brought the case in good faith and with a reasonable basis, and the respondent did not object to the amount. The public decision does not describe the specific onset of symptoms, medical tests performed, or treatments administered. The petitioner was represented by Andrew Downing of Van Cott & Talamante, PLLC, and the respondent was represented by Ryan Pyles of the United States Department of Justice.

Theory of causation field:
Petitioner Kristina Ries alleged that her minor child, Nickolas Ries, died as a result of an adverse reaction to an influenza vaccine received on December 11, 2012. The petition was filed on November 13, 2014. The respondent argued that the petitioner failed to provide sufficient proof of causation, both as a Table injury and under the Althen standard for off-Table claims. The petitioner filed an expert report from Dr. David Axelrod but subsequently determined she would likely be unable to meet her burden of proof and moved to dismiss her own case due to insufficient proof. The Special Master dismissed the petition for insufficient proof on September 17, 2015. Attorneys' fees and costs in the amount of $25,450.00 were awarded on October 2, 2015, as the petitioner brought the case in good faith and with a reasonable basis, and the respondent did not object to the amount. The specific mechanism of injury, onset, symptoms, medical tests, or treatments were not described in the public decision. The theory of causation was alleged as an off-Table injury.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-01104-0
Date issued/filed: 2015-09-17
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 08/12/2015) regarding 29 DECISION of Special Master. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:14-vv-01104-UNJ Document 35 Filed 09/17/15 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
KRISTINA RIES, on behalf of her *
deceased minor child, *
NICKOLAS RIES, * No. 14-1104V
*
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 12, 2015
*
SECRETARY OF HEALTH * Dismissal; influenza (“flu”)
AND HUMAN SERVICES, * vaccine; death; insufficient proof.
*
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Ryan Pyles, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Kristina Ries filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. § 300aa—10 through 34 (2012), on November 13, 2014. In her
petition, Ms. Ries alleged that her minor child, Nickolas Ries, suffered an adverse
reaction to the influenza (“flu”) vaccine he received on December 11, 2012, and
subsequently died as a result. The information in the record, however, does not
show entitlement to an award under the Program.
I. Procedural History
On November 13, 2014, Kristina Ries, on behalf of her minor child,
Nickolas Ries, filed a petition alleging that Nickolas’s death was caused-in-fact by
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 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-01104-UNJ Document 35 Filed 09/17/15 Page 2 of 3
an influenza (“flu”) vaccine he received on December 11, 2012. No medical
records were filed with the petition as required by 42 U.S.C. § 300aa—11(c). Ms.
Ries filed an affidavit and medical records in support of her petition on December
3, 2014, (exhibits 1-6), followed by a statement of completion on December 16,
2014.
On February 3, 2015, respondent filed a Rule 4(c) report in which she
concluded that Ms. Ries failed to fulfill the criteria for a Vaccine Table injury and
failed to demonstrate by a preponderance of the evidence that Nickolas’s death was
caused-in-fact by the influenza (“flu”) vaccine he received on December 11, 2012.
Resp’t’s Rep. at 5. Respondent noted that Ms. Ries has not provided sufficiently
reliable evidence of causation that satisfies the elements of Althen, required to
establish a prima facie case that the influenza (“flu”) vaccination could have
caused and in fact did cause Nickolas’s death. Id. at 5 (citing Althen v. Sec’y of
Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)).
On February 10, 2015, Ms. Ries was ordered to file an expert report by April
20, 2015. On May 20, 2015, Ms. Ries filed an expert report by Dr. David Axelrod
(exhibit 12). A status conference was held on May 29, 2015, to discuss petitioner’s
expert report and a deadline was set for respondent to file a responsive report.
On July 16, 2015, before respondent’s expert report was due, Ms. Ries
moved for a decision dismissing her petition. In her motion, Ms. Ries stated that
“an investigation of the facts and science supporting the case as medical records
were received has demonstrated to Petitioner that she will likely be unable to meet
her burden of proof and establish that she is entitled to compensation in the
Vaccine Program.” Pet’r’s Mot. for Dec. at ¶2.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, petitioners must prove either 1) that the vaccinee suffered a “Table
Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to
one of the vaccinee’s vaccinations, or 2) that the vaccinee suffered an injury that
was actually caused by a vaccine. See §§ 300aa—13(a)(1)(A) and 300aa—
11(c)(1). An examination of the record did not uncover any evidence that Nikolas
suffered a “Table Injury.”
Under the Act, petitioners may not be given a Program award based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
2

Case 1:14-vv-01104-UNJ Document 35 Filed 09/17/15 Page 3 of 3
medical records or by the opinion of a competent physician. § 300aa—13(a)(1).
In this case, because the medical records do not support Ms. Ries’s claim, a
medical opinion must be offered in support. Although Ms. Ries has provided an
opinion from Dr. Axelrod, she has determined that she will be unable to meet her
burden of proof to establish she is entitled to compensation.
Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_14-vv-01104-1
Date issued/filed: 2015-10-02
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 09/09/2015) regarding 33 DECISION Fees Stipulation/Proffer. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
--------------------------------------------------------------------------------
Case 1:14-vv-01104-UNJ Document 37 Filed 10/02/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
KRISTINA RIES, on behalf of her *
deceased minor child, *
NICKOLAS RIES, * No. 14-1104V
*
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 9, 2015
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs; award
* in the amount to which
Respondent. * respondent does not object.
* * * * * * * * * * * * * * * * * * * * *
Andrew Donald Downing, Van Cott & Talamante, PLLC Phoenix, AZ, for
Petitioner;
Ryan Daniel Pyles, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On September 8, 2015, petitioner filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioner
submitted a draft application to respondent for review and after informal
discussions regarding objections raised by respondent, petitioner agreed to amend
her application to seek $25,450.00 for attorneys’ fees and costs. Respondent found
petitioner’s application to be reasonable. The Court awards this amount.
On November 13, 2014, Kristina Ries filed a petition alleging that her minor
child, Nickolas Ries, suffered an adverse reaction to the influenza (“flu”) vaccine
he received on December 11, 2012, and subsequently died as a result. The
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 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-01104-UNJ Document 37 Filed 10/02/15 Page 2 of 2
information in the record, however, did not show entitlement to an award under the
Program. Decision, issued August 12, 2015.
Even though compensation was denied, a petitioner who brings her petition
in good faith and who has a reasonable basis for the petition may be awarded
attorneys’ fees and costs. See 42 U.S.C. § 300aa–15(e)(1). Here, counsel for
petitioner spent time gathering medical records and filing affidavits for petitioner.
Counsel consulted an expert and then counsel realized that proof of causation was
lacking and the case could not proceed. At this point, counsel took steps to resolve
this case relatively quickly so as not to increase costs and expenses unnecessarily.
Thus, because petitioner’s counsel acted in good faith and there was a reasonable
basis for proceeding, petitioner is eligible for an award of attorneys’ fees and costs.
Respondent does not contend that petitioner failed to satisfy these criteria.
Petitioner seeks a total of $25,450.00 in attorneys’ fees and costs for her
counsel. Additionally, in compliance with General Order No. 9, petitioner states
that she did not incur any in out-of-pocket litigation expenses while pursuing this
claim. Respondent has no objection to the amount requested for attorneys’ fees
and costs.
After reviewing the request, the Court awards the following:
A lump sum of $25,450.00 in the form of a check made payable to
petitioner and petitioner’s attorney, Van Cott & Talamante, PLLC, for
attorneys’ fees and other litigation costs available under 42 U.S.C. §
300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.
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