Michael Bailey Jr., on behalf of the Estate of Michael Bailey, Sr. v. HHS - Influenza, amyotrophic lateral sclerosis (2020)

On November 23, 2015, Michael Bailey Sr. filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that the flu vaccine Fluarix he received on December 12, 2012, caused him to develop Guillain-Barre Syndrome (GBS). He acknowledged that his doctors had diagnosed him with Amyotrophic Lateral Sclerosis (ALS) but contended he had all the symptoms of GBS.

Mr. Bailey reported experiencing symptoms such as heart palpitations, dizziness, and headaches within days of vaccination, followed by progressive weakness in his extremities, loss of control, and eventual total disability.

He died on July 28, 2017, and his son, Michael Bailey Jr., continued the claim on behalf of the estate. The Special Master, Katherine E.

Oler, denied entitlement, finding that the evidence overwhelmingly supported an ALS diagnosis and not GBS. The Special Master's decision was reviewed by Senior Judge Nancy B.

Firestone of the United States Court of Federal Claims, who upheld the denial, finding it was not arbitrary or capricious. Petitioner's counsel was Braden Andrew Blumenstiel, and respondent's counsel was Colleen Clemons Hartley.

The Special Master did not conduct an evidentiary hearing, finding that the parties had ample opportunity to support their claims with written evidence and briefs. The court found that the Special Master's decision to first determine the injury before addressing causation was legally proper, citing precedent where the injury itself is in dispute.

The court also found that the Special Master's conclusion that the record supported a finding of ALS and not GBS was not arbitrary or capricious. This conclusion was based on the opinions of Mr.

Bailey's treating physicians, including three neurologists, and the respondent's expert, Dr. Vinay Chaudhry, a neurologist.

The Special Master found Petitioner's experts, Dr. Phillip DeMio (a medical doctor) and Dr.

James Lyons-Weiler (a Ph.D. in ecology, evolution, and conservation biology), were not qualified to opine on the issue of diagnosis and were not persuasive. The court noted that Dr.

DeMio's expert opinions had been discredited in other program cases. The Special Master also noted that Mr.

Bailey's treating physicians never diagnosed him with GBS or considered it a differential diagnosis. The court upheld the Special Master's decision, noting that Petitioner did not challenge the Special Master's conclusion that he failed to demonstrate that the flu vaccine caused Mr.

Bailey's ALS or significantly aggravated his pre-existing ALS. The petition was dismissed, and no award was granted.