Rosa Allicock v. HHS - global developmental delays (2015)

On May 12, 2015, Rosa Allicock filed a petition on behalf of her minor child, M.A., seeking compensation under the National Vaccine Injury Compensation Program. The petition alleged that vaccinations M.A. received on May 14, 2012, and July 17, 2012, caused or significantly aggravated his global developmental delays.

The Respondent filed a report on October 6, 2015, stating that the child's developmental delays preceded the vaccinations and that the medical records did not support the petitioner's causation theory. During a status conference on October 16, 2015, Special Master Brian H.

Corcoran expressed doubt about the case's reasonable basis, noting that the medical records did not appear to support the claim of aggravation. On October 18, 2015, the Petitioner filed an unopposed motion to dismiss the case, stating that an investigation of the facts and science demonstrated an inability to prove entitlement to compensation.

Special Master Corcoran agreed, finding insufficient evidence in the record to meet the burden of proof for either a Table Injury or vaccine causation, and dismissed the case for insufficient proof on November 23, 2015. Subsequently, the Petitioner sought attorneys' fees and costs.

The Special Master awarded approximately $20,000 in fees and costs, finding that while the case had a minimal reasonable basis, the need to file before the statute of limitations expired, coupled with delayed medical records, justified the initial filing. The Respondent appealed the fee award to the U.S.

Court of Federal Claims. Judge Thomas C.

Wheeler reviewed the decision and affirmed the Special Master's award of attorneys' fees and costs on November 9, 2016, finding no abuse of discretion. The court noted that the Special Master found the case had "barely enough reasonable basis to be viable" and that the decision to award fees was based on the totality of the circumstances, including the need to file before the statute of limitations expired, the petitioner's report of worsening symptoms after vaccination, a physician's notation of possible vaccine-caused encephalopathy, and the delayed receipt of medical records.

Petitioner's counsel was Andrew D. Downing.

Respondent's counsel included Traci R. Patton, Benjamin C.

Mizer, Rupa Bhattacharyya, Catharine E. Reeves, and Voris E.

Johnson, Jr. The Special Master was Brian H.

Corcoran, and the reviewing judge was Thomas C. Wheeler.