A.L. v. HHS - MMRV, immune thrombocytopenic purpura (ITP) (2021)
Case summary [AI summaries can sometimes make mistakes]
On February 14, 2018, Victoria and Kevin Leming filed a petition on behalf of their minor child, A.L., alleging that the measles-mumps-rubella-varicella (MMRV), diphtheria-tetanus-acellular pertussis (DTaP), and/or Haemophilus influenzae type b (Hib) vaccines administered on September 6, 2016, caused A.L. to suffer from immune thrombocytopenic purpura (ITP), immune dysfunction, and immunodeficiency. A.L. was approximately fifteen months old at the time of vaccination.
Within a week of receiving the vaccines, A.L. developed a rash and fever. By September 29, 2016, she was diagnosed with ITP due to a severely low platelet count.
She received treatment, including intravenous immunoglobulin and steroid therapy, and her condition improved, with her platelet count normalizing by November 2016. A ruling on entitlement was issued on November 4, 2020, finding A.L. entitled to compensation, as the respondent conceded that A.L. suffered from ITP related to the MMRV vaccination and experienced residual effects for more than six months.
On March 29, 2021, a decision awarded A.L. and her parents $35,000.00 for pain and suffering and $5,992.89 for past unreimbursable expenses, totaling $40,992.00. The respondent, the Secretary of Health and Human Services, filed a motion for review of the initial entitlement ruling, arguing that A.L.'s condition did not meet the severity requirement because her bone marrow aspiration was not a surgical intervention.
The court granted this motion and remanded the case. On remand, petitioners argued that A.L. suffered residual effects for more than six months post-vaccination, specifically citing the presence of "giant platelets" in her blood and a physician's alleged recommendation to delay further vaccinations until age six.
Chief Special Master Brian H. Corcoran ruled against petitioners, finding the evidence insufficient to establish the severity requirement.
Petitioners sought reconsideration, submitting additional records and an expert report, but the Chief Special Master denied the motion. Petitioners then sought review of the Chief Special Master's decisions.
The Court of Federal Claims reviewed the case and affirmed the Chief Special Master's decisions, finding that the presence of giant platelets and the alleged vaccination restriction did not meet the criteria for residual effects under the Vaccine Act. The court found that A.L.'s ITP had resolved by December 2016, her platelet counts were normal, and the medical records did not support the claim of a vaccination delay recommendation.
The court denied petitioners' motion for review, upholding the dismissal of the claim.
Theory of causation
Petitioners alleged that the MMRV, DTaP, and/or Hib vaccines administered on September 6, 2016, to minor A.L. (age 1.38 years) caused immune thrombocytopenic purpura (ITP). The respondent conceded that A.L. suffered from ITP related to the MMRV vaccination and experienced residual effects for more than six months, satisfying the severity requirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i). A ruling on entitlement was issued on November 4, 2020, by Chief Special Master Brian H. Corcoran. A damages decision on March 29, 2021, awarded $35,000.00 for pain and suffering and $5,992.89 for past unreimbursable expenses, totaling $40,992.00. Subsequent proceedings involved a motion for review by the respondent regarding the severity requirement, specifically concerning whether A.L.'s condition "resulted in inpatient hospitalization and surgical intervention" under § 300aa-11(c)(1)(D)(iii). The court reversed the initial finding on this point. On remand, petitioners argued that A.L. suffered residual effects for more than six months post-vaccination, citing "giant platelets" and an alleged vaccination restriction. Chief Special Master Corcoran denied entitlement on this basis, finding the evidence insufficient. Petitioners' motion for reconsideration and subsequent motion for review were denied by Chief Special Master Corcoran and then by the Court of Federal Claims, which affirmed that A.L.'s ITP had resolved by December 2016 and that the alleged residual effects did not meet the statutory requirements. Attorneys for petitioner were Robert Joel Krakow and Law Office of Robert J. Krakow, P.C. Attorneys for respondent were Julia Marter Collison, Alexis B. Babcock, Heather L. Pearlman, C. Salvatore D’Alessio, and Brian M. Boynton. Special Masters involved were Brian H. Corcoran and Nora Beth Dorsey. Chief Judge Elaine D. Kaplan presided over the final review.
Source PDFs
USCOURTS-cofc-1_18-vv-00232