Thomas Hohenstein v. HHS - Influenza, vaccine-induced chronic inflammatory demyelinating polyneuropathy (CIDP) (2023)

Thomas Hohenstein filed a petition on August 16, 2019, alleging that an influenza vaccine he received on November 3, 2016, caused or aggravated chronic inflammatory demyelinating polyneuropathy (CIDP). The respondent, the Secretary of Health and Human Services, contested entitlement.

During a status conference, it was noted that Mr. Hohenstein had not presented a medical theory to support his case, his treating doctors did not support vaccine causation, and there were conflicting reports regarding the onset of his symptoms.

The parties agreed to first address the onset dispute by developing the evidentiary record. Mr.

Hohenstein submitted additional evidence, including affidavits, medical records, and employment records. A hearing was held on October 11, 2022, where Mr.

Hohenstein and other witnesses testified. Based on this evidence, Special Master Christian J.

Moran issued a Finding of Fact on October 21, 2022, determining that Mr. Hohenstein's neurological problems began on May 15, 2017, which was 193 days after the vaccination.

This lengthy interval made a finding of vaccine causation extremely unlikely. Following this determination, Mr.

Hohenstein moved on December 15, 2022, to dismiss his petition, stating he understood this would result in judgment against him and that he intended to reject the Vaccine Program judgment to file a civil action. The Secretary did not respond to the motion.

Special Master Moran granted the motion, dismissing the case with prejudice for insufficient proof, and judgment was entered on February 6, 2023. Mr.

Hohenstein subsequently sought attorneys' fees and costs, arguing he brought the claim in good faith with a reasonable basis. The Special Master denied this request on July 28, 2023, finding that the objective evidence did not rise to a level warranting a finding of reasonable basis.

Mr. Hohenstein sought reconsideration, which was denied.

He then sought review of the Special Master's decision denying attorneys' fees and costs from the Court of Federal Claims. Petitioner argued that the Special Master applied a heightened standard for attorneys' fees and costs and erred in finding no evidence of causation.

The Court of Federal Claims, in an opinion issued under seal on December 21, 2023, and reissued publicly on January 9, 2024, reviewed the Special Master's decision under the arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law standard. The Court found that the Special Master did not err in using the Althen prongs to structure his analysis for reasonable basis, nor did he impermissibly require an express medical opinion.

The Court also found that the Special Master's evaluation of the objective evidence, which noted the lack of causation evidence from treating doctors, lack of an expert report, and lack of medical articles examining a potential link between the flu vaccine and CIDP, was rational and supported by the record. The Court concluded that public policy considerations did not override the evidentiary burden.

Therefore, the Court denied Mr. Hohenstein's motion for review and sustained the Special Master's decision denying attorneys' fees and costs.

The attorneys for the petitioner were Mark Theodore Sadaka, Law Offices of Sadaka Associates, LLC. The attorneys for the respondent were Tyler King, Darryl R.

Wishard, Heather L. Pearlman, C.

Salvatore D’Alessio, and Brian M. Boynton, United States Department of Justice.

Special Master Christian J. Moran issued the initial decision, and Judge Philip S.

Hadji issued the review decision.