VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00410
Package ID: USCOURTS-cofc-1_19-vv-00410
Petitioner: Jessica Davis parent of C.D., a minor
Filed: 2019-03-18
Decided: 2023-03-30
Vaccine: Pediarix
Vaccination date: 2017-01-13
Condition: transverse myelitis
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Jessica Davis, on behalf of her minor daughter C.D., filed a claim alleging that C.D. suffered transverse myelitis (TM) after receiving multiple vaccines, including Pediarix (DtaP, Hep B, IPV), pneumococcal, and rotavirus vaccines on January 13, 2017. The initial petition was filed on March 18, 2019. Over the course of the litigation, there was uncertainty regarding C.D.'s diagnosis, with experts disagreeing whether she had TM, multiple sclerosis, acute disseminated encephalomyelitis (ADEM), or acute flaccid myelitis (AFM) secondary to an upper respiratory infection. The Special Master noted that the petitioner's own expert opined the diagnosis was ADEM, while the respondent's expert suggested AFM. The Special Master also highlighted that C.D. had an intervening viral illness around the time of her neurological symptoms. Ultimately, the Special Master found insufficient evidence to prove that the vaccinations caused C.D.'s condition, explaining that it would be difficult to demonstrate causation given the diagnostic uncertainties and the intervening viral illness. Consequently, on April 19, 2022, the petition was dismissed for insufficient proof. Later, on May 1, 2023, the court awarded $81,423.09 in attorneys' fees and costs, finding the petition was filed in good faith and with a reasonable basis, despite the ultimate dismissal.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00410-0
Date issued/filed: 2022-05-10
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 4/19/2022) regarding 59 DECISION on Entitlement. Signed by Special Master Thomas L. Gowen. (slw) Service on parties made.
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Case 1:19-vv-00410-UNJ Document 60 Filed 05/10/22 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: April 19, 2022
* * * * * * * * * * * * * * * * * * *
JESSICA DAVIS * UNPUBLISHED
Parent of C.D., a minor *
*
* No. 19-410V
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Petitioner’s Motion for Dismissal;
AND HUMAN SERVICES, * Insufficient Proof; transverse
* myelitis (“TM”); DtaP, Hep B, IPV,
* Hib, PCV, rotabirus.
Respondent. *
* * * * * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Kimberly Shubert Davey, United States Department of Justice, Washington, DC for respondent.
DECISION ON ENTITLEMENT1
On March 18, 2019, Jessica Davis (“petitioner”) on behalf of her minor daughter, C.D.,
filed a claim in the National Vaccine Injury Compensation Program.2 She alleged that as a result
of C.D. receiving Pediarix, conjugated vaccine containing diphtheria-tetanus-acellular pertussis
(“DtaP”), hepatitis B (“hep B”), and inactivated poliovirus (“IPV”), pneumococcal vaccine, and
rotavirus vaccine on January 13, 2017, C.D. suffered transverse myelitis (“TM”). Petition (ECF
No. 1).
On April 15, 2022, petitioner filed a motion for a decision dismissing this claim.
Petitioner’s Motion (“Pet. Mot.”) (ECF No. 58). The motion provides that petitioner has chosen
not to move forward with her petition for compensation in the Vaccine Program. Pet. Mot. at 1.
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the decision
is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. Id.
2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et seq.
(hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the
Act.

Case 1:19-vv-00410-UNJ Document 60 Filed 05/10/22 Page 2 of 3
Petitioner is aware that a decision by the special master dismissing the petition will result in a
judgment against petitioner and will end all of petitioner’s rights in the Vaccine Program. Id. at
1-2. Petitioner intends to protect her rights to file a civil action in the future. Therefore, pursuant
to 42 U.S.C. § 300aa-21(a)(2), petitioner intends to elect to reject the Vaccine Program judgment
and to file a civil action. Id. at 1-2. This matter is now ripe for review.
A petitioner must establish entitlement to compensation in the Vaccine Program through
one of two ways. The first way is to establish that he or she suffered a “Table injury,” i.e., that he
or she received a vaccine listed on the Vaccine Injury Table and subsequently developed a
corresponding injury within a corresponding period of time. § 300aa-11(c)(1). The second way
is to establish that the vaccine actually caused the onset or significant aggravation of a condition
in the vaccinee. § 300aa-13(a)(1)(A). To prove actual causation, petitioner must present: (1) a
medical theory; (2) a logical sequence of cause and effect; and (3) a medically acceptable temporal
relationship between the vaccination and the injury. Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274, 1278 (Fed. Cir. 2005).
In the present case, petitioner does not allege a Table injury. Thus, to prevail on
entitlement petitioner must establish that the vaccines administered to C.D. on January 13, 2017,
were the cause of her neurological condition. Under the Vaccine Act, a petitioner may not be
awarded compensation based solely on the petitioner's claims. Rather, the petition must be
supported by either medical records or by the opinion of a competent physician. § 300aa-
13(a)(1).
Several challenges to petitioner’s claim have been apparent over the past three years it
has been pending. The first challenge would be to establish whether C.D. actually had TM,
considering that her early medical records reflect that a number of diagnoses were entertained,
including TM. However, experts from both parties agreed that C.D. did not have TM or multiple
sclerosis. Pet. Exhibit (“Ex.”) 26 at 51; Resp. Ex. A at 9-11. Instead, petitioner’s own expert
Yuval Shafrir, M.D., opined that the correct diagnosis is acute disseminated encephalomyelitis
(“ADEM”) with brainstem and cervical spinal cord involvement. Pet. Ex. 26 a 51; Pet. Ex. 71 at
4. Respondent’s expert, Tim Lotze, M.D. disagrees that C.D. meets the diagnostic criteria for
ADEM, and instead opines that C.D.’s proper diagnosis is “viral rhombencephalitis with myelitis
producing cranial nerve dysfunction and acute flaccid paralysis (i.e., acute flaccid myelitis
(‘AFM’))” with the most likely etiology being a virus that was not identified in laboratory
testing. Resp. Ex. A at 9-11; Resp. Ex. C at 5.
The diagnosis is complicated by her medical records which show that her first medical
presentation was for an upper respiratory infection (“URI”) around the same time as the eye
movements, which were the first documented symptoms of C.D.’s neurological condition. Pet.
Ex. 6 at 3846; Pet. Ex. 26 at 51. There still remains uncertainty about the date of the onset of
abnormal eye movements in the medical records, and the overall picture appears more consistent
with a diagnosis of AFM secondary to an URI. Therefore, I explained that it would be difficult
to demonstrate that C.D.’s vaccinations were the cause of her condition, especially as she had an
intervening viral illness in close proximity to the onset of neurological symptoms.
2

Case 1:19-vv-00410-UNJ Document 60 Filed 05/10/22 Page 3 of 3
In this case, there is insufficient evidence by way of either medical records or expert
opinion to carry petitioner’s burden of proof under Althen. Petitioner’s claim therefore cannot
succeed and in accordance with her motion must be dismissed. §11(c)(1)(A).
Thus, this case is dismissed for insufficient proof. The Clerk of the Court shall enter
judgment accordingly.
IT IS SO ORDERED.
s/ Thomas L. Gowen
Thomas L. Gowen
Special Master
3

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-00410-1
Date issued/filed: 2023-05-01
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 03/30/2023) regarding 66 DECISION of Special Master - Fees. Signed by Special Master Thomas L. Gowen. (kp) Service on parties made.
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Case 1:19-vv-00410-UNJ Document 69 Filed 05/01/23 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 30, 2023
* * * * * * * * * * * * * *
JESSICA DAVIS parent of C.D., *
a minor, * UNPUBLISHED
*
Petitioner, * No. 19-410V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Kimberly S. Davey, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 29, 2022, Jessica Davis (“Petitioner”) filed a motion for attorneys’ fees and
costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 63). For the reasons discussed
below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $81,423.09.
I. Procedural History
On March 18, 2019, Petitioner filed a petition on behalf of her minor child, C.D., in the
National Vaccine Injury Compensation Program.2 Petitioner alleged that C.D. suffered transverse
myelitis after receiving Pediarix, a conjugated vaccine containing tetanus-diphtheria-acellular-
pertussis, hepatitis B, and inactivated poliovirus vaccinations on January 13, 2017. See Petition
1 I intend to post this Ruling on the United States Court of Federal Claims' website. This means the Ruling will be
available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services).
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine
Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

Case 1:19-vv-00410-UNJ Document 69 Filed 05/01/23 Page 2 of 4
(ECF No. 1). On April 15, 2022, Petitioner filed a motion for a decision dismissing her petition
and on April 19, 2022, I issued my decision denying entitlement and dismissing the petition for
insufficient proof. (ECF No. 59).
On September 29, 2022, Petitioner filed a motion for final attorneys’ fees and costs.
Petitioner requests compensation for her attorneys at Conway, Homer, P.C. in the total amount of
$86,023.09, representing $50,949.70 in attorneys’ fees and $35,073.39 in costs. Fees App. at 1-2.
Pursuant to General Order No. 9, Petitioner warrants she has not personally incurred any costs in
pursuit of her claim. Id. at 2. Respondent reacted to the fees motion on October 4, 2022, stating
that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case.” Response at 2 (ECF No. 65). Petitioner did not file a reply thereafter.
The matter is now ripe for adjudication.
II. Analysis
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, although the petition was eventually dismissed, I am
satisfied that the case has met the requirements of good faith and reasonable basis. Respondent has
also indicated that he is satisfied that good faith and reasonable basis have been met in this case.
Accordingly, a final award of reasonable attorneys’ fees and costs is proper.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
I have reviewed the rates requested by Petitioner for the work of her counsel at Conway,
Homer, P.C. (the billing records reflect that the majority of attorney work was performed by Ms.
Meredith Daniels with supporting work done by Mr. Ronald Homer, Mr. Nathaniel Enos, Mr.
Joseph Pepper, Ms. Lauren Faga, Ms. Christina Ciampolillo, and Mr. Patrick Kelly) and I find the
rates requested herein to be consistent with what these attorneys have previously been awarded for
their Vaccine Program work and reasonable in light for the work performed in this case.
Turning next to the billed hours, I have reviewed the submitted billing entries and find
that the hours billed are largely reasonable. However, a small amount must be reduced for
attorney time billed for review of status reports and other routine filings prepared by other
2

Case 1:19-vv-00410-UNJ Document 69 Filed 05/01/23 Page 3 of 4
attorneys. It is common practice for Conway, Homer, P.C. to have several attorneys assist over
the course of a case. In some instances, such as when preparing substantive documents like the
petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that
document. However, it is not reasonable to have an attorney bill for time to review routine
filings, such as status reports and motions for enlargement of time, when those filings were
prepared (and billed for) by another attorney. To offset these issues, the undersigned finds a
reduction of $750.00 to be appropriate in this case. Accordingly, petitioner is awarded final
attorneys’ fees of $50,199.70.
b. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $35,073.39. This amount is comprised of acquiring medical
records, postage, photocopies, the Court’s filing fee, and work by Petitioner’s medical expert, Dr.
Yuval Shafrir. Dr. Shafrir recently began billing his time at $450.00 per hour, an increase from his
previous hourly rate of $350.00 per hour, which has been found to be reasonable for work
performed in 2021 and onward. Paul v. Sec’y of Health & Human Servs., No. 19-1221V, 2023 WL
1956423, at *4 (Fed. Cl. Spec. Mstr. Feb. 13, 2023). I agree with the well-reasoned analysis in
Paul that Dr. Shafrir’s more recent Vaccine Program should be compensated at $450.00 per hour
for work starting in 2021. However, consistent with previous cases, I shall compensate Dr.
Shafirir’s 2020 work at $350.00 per hour. Application of this rate results in a reduction $3,850.00.
The remainder of the costs are reasonable and supported by adequate documentation.
Petitioner is therefore awarded final costs of
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $50,949.70
(Reduction of Fees) - ($750.00)
Total Attorneys’ Fees Awarded $50,199.70
Attorneys’ Costs Requested $35,073.39
(Reduction of Costs) - ($3,850.00)
Total Attorneys’ Costs Awarded $31,223.39
Total Attorneys’ Fees and Costs $81,423.09
3

Case 1:19-vv-00410-UNJ Document 69 Filed 05/01/23 Page 4 of 4
Accordingly, I award a lump sum in the amount of $81,423.09, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and her attorney, Mr. Ronald Homer.3
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
/s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).
4