VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00660
Package ID: USCOURTS-cofc-1_20-vv-00660
Petitioner: W.K.
Filed: 2019-05-29
Decided: 2022-08-23
Vaccine: rotavirus
Vaccination date: 2019-09-16
Condition: intussusception
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Patricia Koapke, as the parent and natural guardian of her minor son W.K., filed a petition on May 29, 2019, alleging that the rotavirus vaccine administered on September 16, 2019, caused W.K. to develop intussusception. Initially, the claim was pursued as a Table claim under the National Vaccine Injury Compensation Program. However, this claim was dismissed by Special Master Brian H. Corcoran on September 15, 2021, because W.K.'s symptoms began 26-28 days after vaccination, which falls outside the 1-21 day onset timeframe specified for intussusception on the Vaccine Injury Table. The Special Master granted Petitioner an opportunity to show cause why the case should proceed as a non-Table, causation-in-fact claim, requiring her to provide a medical or scientific basis for a longer onset period. Petitioner filed an amended petition on September 29, 2021, alleging causation-in-fact. However, Petitioner failed to provide any evidence, such as expert reports or medical literature, to support the contention that intussusception could medically be acceptable as a vaccine injury with an onset beyond the Table's timeframe. Respondent, represented by Sarah Christina Duncan of the U.S. Department of Justice, argued that symptoms typically occur within seven days and pointed to alternative causes for W.K.'s condition, such as his prolapsed appendix and a nodular lesion in his bowel. Special Master Corcoran found that due to the unique nature of intussusception and the scientific evidence supporting only a short onset window, a longer onset timeframe was not medically reasonable. The Special Master noted that while the Table claim allows for a 21-day window, the scientific evidence best supported an increased risk only one to seven days following vaccination. The public decision does not describe the specific symptoms W.K. experienced, any diagnostic tests performed, or treatments received. The Special Master concluded that Petitioner had not demonstrated any basis for a longer onset period and that expert input was unlikely to be fruitful. Consequently, the Special Master dismissed the causation-in-fact claim on August 23, 2022, and the case was dismissed. Petitioner was represented by Maximillian J. Muller of Muller Brazil, LLP.

Theory of causation field:
Petitioner Patricia Koapke alleged that the rotavirus vaccine administered to minor W.K. on September 16, 2019, caused intussusception. The initial Table claim was dismissed because W.K.'s symptoms began 26-28 days post-vaccination, exceeding the 1-21 day Table timeframe for intussusception. Petitioner sought to proceed on a causation-in-fact theory, but failed to provide any medical or scientific evidence, such as expert reports or literature, to support a medically acceptable longer onset period for intussusception following the rotavirus vaccine. Respondent argued for dismissal, citing scientific evidence that intussusception onset typically occurs within seven days and pointing to alternative causes for W.K.'s condition. Chief Special Master Brian H. Corcoran dismissed the causation-in-fact claim on August 23, 2022, finding that the unique nature of intussusception and the supporting science indicate a short onset window, making a 26-28 day onset medically unreasonable. The public decision does not name specific experts or detail the mechanism of injury beyond the general understanding of intussusception. The case was dismissed without award. Petitioner's counsel was Maximillian J. Muller; Respondent's counsel was Sarah Christina Duncan.

Public staged source text:

================================================================================
DOCUMENT 1: USCOURTS-cofc-1_20-vv-00660-0
Date issued/filed: 2021-10-15
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 09/15/2021) regarding 18 Findings of Fact & Conclusions of Law,, Order to Show Cause, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-660V
UNPUBLISHED
PATRICIA KOAPKE, as parent and Chief Special Master Corcoran
natural guardian of W.K., a minor,
Filed: September 15, 2021
Petitioner,
v. Special Processing Unit (SPU);
Findings of Fact; Onset; Rotavirus
SECRETARY OF HEALTH AND Vaccine; Intussusception
HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
ORDER (I) GRANTING IN PART MOTION TO DISMISS, AND (II) REQUIRING
PETITIONER TO SHOW CAUSE1
On May 29, 2019, Patricia Koapke filed a petition for compensation on behalf of
her minor child, W.K., under the National Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that W.K. developed
intussusception, a Table injury, as a result of a rotavirus vaccine administered on
September 16, 2019. Petition at 1.
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision 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.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 2 of 7
On October 2, 2020, Respondent filed a Rule 4(c) Report arguing that
compensation is not appropriate in this case. Specifically, Respondent argues that W.K.’s
injury occurred outside the timeframe set forth in the Table, and also meets one or more
of the exclusionary criteria set forth in the Qualifications and Aids to Interpretation (“QAI”)
that govern Table claims. ECF No. 12, Respondent’s Rule 4(c) Report (“Report”) at 5-6.3
Respondent concurrently filed a Motion to Dismiss for the reasons set forth in his Rule
4(c) Report. ECF No. 13, Motion to Dismiss, dated October 2, 2020 (“Mot.”) at 1. Petitioner
opposes the motion, arguing that she has established a prima facie case for causation
and Respondent’s motion is premature. ECF No. 15, Petitioner’s Response to
Respondent’s Motion to Dismiss (“Opp.”) at 1-3.
Now, having considered both parties’ briefs as well as the medical records, I find
that there is not preponderant evidence that Petitioner suffered a Table injury. Petitioner
may be able to succeed on a causation-in-fact theory – although she will need to
substantiate the contours of such a claim.
I. Factual Background
W.K. presented to his pediatrician for his two-month well check on September 16,
2019. Ex. 1 at 25. At that time, he received the pneumococcal and rotavirus vaccines. Id.
at 26.
Less than a month later, on October 14, 2019, W.K. was seen at the emergency
room for rectal bleeding and bloody vomit. Ex. 1 at 56. Petitioner and her husband
reported that his symptoms began that day. Ex. 3 at 13.4 W.K. had a fever at that time,
fullness in the left lower quadrant, but did not appear tender on deep palpitation of his
abdomen. Id. at 15. An abdominal x-ray indicated a possible obstruction of the left lower
quadrant, and an ultrasound showed a colonic intussusception with marked edematous
changes in the colonic wall. Id. at 40, 41. A barium enema was unsuccessful. Id. at 16.
W.K. was thereafter admitted to Sanford Bismark Medical Center under the care
of Drs. Kimber Boyko and Tod Twogood on October 14, 2019. Ex. 4 at 12-15, 23. Upon
admission, Petitioner reported that W.K. had vomited several times over the previous two
days. Id. at 23. Further, that morning Petitioner noticed blood in W.K.’s diaper and coming
out of his anus. Id.
3 Respondent also argues that Petitioner has not established causation-in-fact. Report at 6-8.
4 The petitioner states that W.K. presented with two days of vomiting and blood in his stool. Petition at 1.
However, the medical records are not consistent with this.

Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 3 of 7
W.K. did not have a fever upon admittance, and received IV fluids prior to
emergency surgery on October 14, 2019. He had a large segment of ileum
intussuscepted into the ascending and part of the transverse colon that was not able to
be manually reduced and was nonviable. Ex. 4 at 12, 48-49. He also had a section of
necrotic bowel due to intussusception, including 20 cm of small intestine and ascending
colon, and a separate 5 cm segment of transverse colon. Id. at 48-49.
Dr. Boyko removed the necrotic bowel and connected the ileum to the transverse
colon (an ileocolic anastomosis). Ex. 4 at 48-49. Pathology results revealed
intussusception of the terminal ileum into the right colon, a prolapsed appendix, ischemic
bowel and necrosis, severe acute inflammation and congestion, and an aggregate of five
benign hypertrophic lymph nodes with severe congestion. Id. at 54-55. The pathologist
noted in particular that “[d]irectly adjacent to the dusky portion of the bowel, there is a 1.7
x 1.2 x 1. cm dusky purple nodular lesion.” Id.
Following surgery, W.K. had signs of shock with fever that was thought to be a
response to his bowel injury and surgery. Ex. 4 at 13. He remained in the hospital for the
following 15 days due to various complications, including abdominal distension, anemia,
sepsis, and blood loss. Id. at 14-26. W.K. was discharged on October 29, 2019 without a
fever, and a soft, non-tender and nondistended abdomen. Id. at 29.
On October 31, 2019, W.K. had a follow-up visit with his pediatrician and was noted
as doing well. Ex. 1 at 23. W.K. was seen again on November 20, 2019, for a well visit
and was reported as normal. Id. at 20. That same day, W.K. was seen for a follow-up by
Dr. Boyko, who also noted he was doing well. Ex. 4 at 97.
II. Procedural History
The Petition was filed on May 29, 2020 and alleges a table injury of intussusception
resulting from a rotavirus vaccine. ECF No. 1. The Petition also states that the
intussusception injury “was caused by the rotavirus vaccine,” indicating that a causation-
in-fact non-Table claim is also alleged. Id. at 3.
Respondent filed a Rule 4(c) Report on October 2, 2020, arguing that W.K. did not
suffer a Table injury because his intussusception occurred outside of the timeframe set
forth in the Table. Report at 5. Respondent also argues that W.K. had a preexisting
condition, identified as the lead point for intussusception and/or bowel abnormalities,
which is an exclusion criterion under the Table. Id. at 6. Respondent concurrently filed a
motion to dismiss for the reasons set forth in his report. Mot. at 1. Petitioner opposed the

Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 4 of 7
motion, arguing that she has established a prima facie case for causation, and also
maintaining that Respondent’s motion is premature. Opp. at 1-3.
III. Analysis of Substantive Issues Raised by Respondent's Motion
A. Requirements of a Table Intussusception Claim
A petitioner may prevail on a claim if he has “sustained, or endured the significant
aggravation of any illness, disability, injury, or condition” set forth in the Vaccine Injury
Table (the Table). Section 11(c)(1)(C)(i). The most recent version of the Table, which can
be found at Section 100.3, identifies the vaccines covered under the Program, the
corresponding injuries, and the time period in which the particular injuries must occur after
vaccination. Section 14(a); 42 C.F.R. § 100.3.
Finding a petitioner is entitled to compensation cannot be “based on the claims of
a petitioner alone, unsubstantiated by medical records or by medical opinion.” Section
13(a)(1). Indeed, contemporaneous medical records are deemed trustworthy proof of
petitioner’s medical issues. Cucuras v. Sec’y of Health & Hum. Servs., 993, F.2d 1525,
1528 (Fed. Cir. 1993). Testimony offered after the events in question, by contrast, is
considered less reliable, given the need for accurate explanation of symptoms at the time
of treatment. Reusser v. Sec’y of Health & Hum. Servs., 28 Fed. Cl. 516, 523 (1993).
“It must [also] be recognized that the absence of a reference to a condition or
circumstance is much less significant than a reference which negates the existence of the
condition or circumstance. Since medical records typically record only a fraction of all that
occurs, the fact that reference to an event is omitted from the medical records may not
be very significant.” Murphy v. Sec’y of Health & Hum. Servs., 23 Cl. Ct. 726, 733 (Fed.
Cl. 1991), aff’d, 968 F.2d 1226 (Fed. Cir. 1992); see also Kirby v. Sec'y of Health & Hum.
Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021) (rejecting as incorrect the presumption that
medical records are always accurate and complete as to all of the patient’s physical
conditions).
However, in balancing these considerations, special masters in this Program have
in most cases declined to credit later testimony over contemporaneous records. See, e.g.,
Stevens v. Sec’y of Health & Hum. Servs., No. 90–221V, 1990 WL 608693, at *3 (Cl. Ct.
Spec. Mstr. Dec. 21, 1990); Vergara v. Sec’y of Health & Hum. Servs., No. 08–882V,
2014 WL 2795491, at *4 (Fed. Cl. Spec. Mstr. July 17, 2014) (“Special Masters frequently
accord more weight to contemporaneously-recorded medical symptoms than those
recounted in later medical histories, affidavits, or trial testimony.”); see also Cucuras, 993

Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 5 of 7
F.2d at 1528 (noting that “the Supreme Court counsels that oral testimony in conflict with
contemporaneous documentary evidence deserves little weight”).
If a petitioner establishes that he has suffered a “Table Injury,” causation is
presumed. A Table injury following a rotavirus vaccine requires that intussusception
occurs between 1 and 21 days after the vaccination. 42 C.F.R. § 100.3(a)(XI). The QAI
provides additional guidance regarding intussusception, and in particular sets forth
exclusionary criteria wherein an injury is not considered a Table intussusception. 42
C.F.R. § 100.3(c)(4)(ii). These include when an individual has a preexisting condition
identified as the lead point for intussusception, such as intestinal masses and cystic
structures, and when an individual has abnormalities of the bowel, including congenital
anatomic abnormalities, anatomic changes after abdominal surgery, and other anatomic
bowel abnormalities caused by mucosal hemorrhage, trauma, or abnormal intestinal
blood vessels. 42 C.F.R. § 100.3(c)(4)(ii)(C), (D).
B. Adequacy of Petitioner’s Table Claim
Petitioner alleges that W.K.’s symptoms first occurred, consisting of vomiting, on
October 12, 2019. Petition at 1-2. However, the medical records indicate that W.K.’s
symptoms first manifested either on October 12 or October 14. Ex. 1 at 56 (noting W.K.’s
symptoms began on October 14, 2019); Ex. 4 at 23 (reporting on October 14, 2019 that
W.K. had vomited several times over the previous two days). But neither date saves the
Table claim – for in either case, W.K.’s first symptoms began either 28 or 26 days after
his rotavirus vaccine, and thus outside the 21-day timeframe set forth in the Table. 42
C.F.R. § 100.3(a)(XI).
There are few cases that discuss the outside range of when intussusception can
be attributed to a rotavirus vaccine. However, at least one case involving intussusception
where the injury occurred outside twenty-one days resulted in dismissal of the Table
claim. Carda v. Sec'y of Health & Hum. Servs., No. 14-191V, 2016 WL 3571539, at *1
(Fed. Cl. Spec. Mstr. May 24, 2016) (motion to dismiss table claim granted in case where
intussusception occurred fifty-seven days after the second rotavirus vaccine dose).
Further, in Carda there was no medically acceptable timeframe suggesting an
intussusception following a rotavirus vaccination would occur more than twenty-one days
post-vaccination – casting doubt on any form of non-Table claim. Carda v. Sec'y of Health
& Hum. Servs., No. 14-191V, 2017 WL 6887368, at *21 (Fed. Cl. Nov. 16, 2017).
Petitioner’s inability to establish onset in the proper timeframe is thus by itself sufficient
basis for the Table claim’s dismissal.5
5 With regard to the exclusionary criteria cited by Respondent, there is simply not enough evidence to
establish that the prolapsed appendix or “dusky purple nodular lesion” in the bowl qualify as either a

Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 6 of 7
C. Resolution of Non-Table Claim
Petitioner’s failure to establish a Table claim still leaves the possibility that the
matter could advance as a causation-in-fact non-Table claim. To establish entitlement for
a Non–Table claim, a petitioner must satisfy all three of the elements set forth in by the
Federal Circuit in Althen: “(1) a medical theory causally connecting the vaccination and
the injury; (2) a logical sequence of cause and effect showing that the vaccination was
the reason for the injury; and (3) a showing of a proximate temporal relationship between
vaccination and injury.” Althen v. Sec'y of Health & Hum. Servs., 418 F.3d 1274, 1278
(Fed. Cir. 2005).
Here, Petitioner may be able to show that a longer onset was still medically
acceptable, under a causation-in-fact theory. But the admittedly-limited prior case law
bearing on that kind of intussusception claim supports a short temporal connection
between a rotavirus vaccine and acute intussusception. In Carda, for example, petitioners
unsuccessfully attempted to establish an intussusception that occurred seven or eight
weeks after receipt of a rotavirus vaccine was causally related to that vaccine. Carda,
2017 WL 6887368 at 23. In that case, I noted that there was no medically acceptable
evidence to support the conclusion that intussusception would occur more than 21 days
after a rotavirus vaccination (the timeframe allowed for in a Table claim). Id. at 21.
A non-Table version of an intussusception claim is of course not bound by the
same 21-day timeframe (although Program petitioners cannot rely on how “close” they
are to meeting it). Rowan v. Sec'y of Health & Hum. Servs., No. 17-760V, 2020 WL
2954954, at *15 (Fed. Cl. Apr. 28, 2020) (“controlling and persuasive Program precedent
does not permit claimants to rely on the Table requirements, or even the mere existence
of a Table version of a claim, in proving a non-Table claim”). It is not certain to me based
on the present record whether a non-Table claim could be persuasively advanced. I will,
however, provide Petitioner the opportunity to file an amended claim, and then show
cause why such a claim should be permitted to proceed, setting forth the evidence (and
if possible, the science) that would support the claim. I will thereafter transfer the claim
out of SPU for adjudication of the non-Table claim if it is evident that such a claim might
be tenable.
preexisting condition that was identified as a lead point for the injury, or an abnormality of the bowel. But
the insufficiency of evidence supporting a Table onset is ample grounds for that claim’s dismissal.

Case 1:20-vv-00660-UNJ Document 21 Filed 10/15/21 Page 7 of 7
IV. Conclusion
Petitioner has failed to file preponderant evidence to establish W.K. suffered a
Table claim.
Accordingly,
• Petitioner’s Table Claim for intussusception is dismissed;
• Petitioner may file an amended petition alleging a causation-in-fact claim
by no later than September 29, 2021; and
• Petitioner shall show cause by October 14, 2021, why she should be
permitted to advance this matter as a non-Table claim. Respondent may
oppose on or before October 29, 2021.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_20-vv-00660-1
Date issued/filed: 2022-08-23
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 07/07/2022) regarding 26 DECISION of Special Master, Signed by Chief Special Master Brian H. Corcoran. (kp) Service on parties made.
--------------------------------------------------------------------------------
Case 1:20-vv-00660-UNJ Document 28 Filed 08/23/22 Page 1 of 5
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-660V
(not to be published)
PATRICIA KOAPKE, as parent and Chief Special Master Corcoran
natural guardian of W.K., a minor,
Petitioner, Filed: July 7, 2022
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On May 29, 2019, Patricia Koapke filed a petition for compensation on behalf of
her minor son, W.K., under the National Vaccine Injury Compensation Program. 42
U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged a Table claim involving
the injury of intussusception caused by the rotavirus vaccine. ECF No. 1, Petition (“Pet.”)
at 1. The matter was assigned to the Special Processing Unit.
In September 2021, I dismissed the Table intussusception claim based on my
finding that W.K.’s symptoms began outside the onset timeframe specified for such a
claim. Ruling and Order, dated September 15, 2021 (ECF No. 18) (the “Show Cause
Order”). I did not dismiss the case entirely, however, noting that a non-Table version of
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00660-UNJ Document 28 Filed 08/23/22 Page 2 of 5
the claim might be tenable – although Petitioner would need to substantiate how such a
claim could succeed, given the existence of some relevant prior decisions suggesting a
too-long onset was not medically acceptable. Show Cause Order at 6-7.
Both sides have now filed briefs on the topic. Petitioner’s Brief, dated November
15, 2021 (ECF No. 22) (“Br.”); Respondent’s Opposition, dated December 6, 2021 (ECF
No. 24) (“Opp.”). Having reviewed the parties’ submissions, I hereby dismiss the non-
Table version of the claim, for the reasons set forth below.
ANALYSIS
A full summary of the facts is set forth in my prior decision dismissing the Table
claim. See generally Show Cause Order at 2–3. In short, W.K. received the rotavirus
vaccine on September 16, 2019. He was later diagnosed with intussusception,3 but did
not become symptomatic until 26-28 days after receiving the vaccine, which is outside
the 1-21 day timeframe set forth for a Table intussusception claim. Pet. at 1; Show Cause
Order at 5. Accordingly, the Table claim could not tenably advance. Id at 7. I noted,
however, that Petitioner might be able to show a longer onset was medically acceptable,
although she would need to provide some scientific or medical basis for allowing this to
occur. Id. Therefore, I ordered her to show cause as to why this matter should be
advanced as a non-Table claim, and to file an amended petition if she was asserting a
causation-in-fact claim. Id.
Petitioner filed an amended petition on September 29, 2021, revising her claim to
allege W.K.’s intussusception was caused in fact by the rotavirus vaccine. ECF No. 22,
Petitioner’s Response to Order (“Resp.”) at 7. Petitioner’s response to my Show Cause
Order was subsequently filed on November 15, 2021, emphasizing that the case can
move forward as a non-Table claim. Resp. at 7. Petitioner argued that the lack of on-point
case law at least established that the contention about onset had never been explicitly
rejected. See Id. at 6. Therefore, she should be given the opportunity to support this
argument with an expert report and other persuasive evidence. Id. at 7. Petitioner did not,
however, provide any evidence (whether a tentative report or item of medical/scientific
literature) that in any way might support the conclusion that a post-vaccination
intussusception onset of a week or more beyond the Table period might be medically
acceptable.
3 The Table defines intussusception as “the invagination of a segment of intestine into the next segment
of intestine, resulting in bowel obstruction, diminished arterial blood supply, and blockage of the venous
blood flow” which typically causes sudden abdominal pain. 42 C.F.R. § 100.3(c)(4)(i).
2

Case 1:20-vv-00660-UNJ Document 28 Filed 08/23/22 Page 3 of 5
Respondent reacted to Petitioner’s filing on December 6, 2021, requesting the
case be dismissed for reasons set forth in their Rule 4(c) Report. ECF No. 24,
Respondent’s Reply to Petitioner’s Response (“Reply”) at 5. Specifically, Respondent
reiterated the contention that a longer onset of intussusception following the rotavirus
vaccine was not medically acceptable. Id. This contention was supported by scientific
evidence indicating symptoms onset would typically occur within seven days of
vaccination, making the 21-day timeframe set forth in the table intentionally generous. Id.
Respondent also noted that Petitioner had not been formally prevented from filing an
expert report, and has had ample time to do so. Id. at 4. Moreover, Respondent
emphasized that none of W.K.’s treating physicians believed the rotavirus vaccine caused
his intussusception, and pointed to W.K.’s prolapsed appendix and the dusky purple
nodular lesion in his bowel as alternative causes to his post-vaccination intussusception.
Id. at 4–5. Thus, Respondent argued that Petitioner could not substantiate a causation-
in-fact claim. Id. at 5.
I find that the sui generis nature of an intussusception injury claim weighs against
allowing this petition to proceed. Intussusception is a unique injury in the Vaccine
Program. Medical science supports an association with the rotavirus vaccine, albeit in a
very short/acute timeframe. See National Vaccine Injury Compensation Program:
Addition of Intussusception as Injury for Rotavirus Vaccines to the Vaccine Injury Table,
80 Fed. Reg. 35848 (June 23, 2015). But because intussusception can easily be treated
quickly (via an invasive surgical procedure), the injury cannot satisfy the Act’s severity
requirement, since full recovery can occur well within six months of vaccination. 42 U.S.C.
§300aa-11(c)(1)(D) (1998).
To get around this statutory contradiction, in 2000 the Vaccine Act was amended
in response to the persuasive evidence linking the rotavirus vaccine and intussusception.
See Children’s Health Act, Pub. L. No. 106-310, § 1701, 114 Stat. 1101, 1151 (2000)
(codified as amended at 42 U.S.C. §300aa-11(c)(1)(D)). The amendment added the
Table claim, and an exception to the six-month severity requirement was also created for
injuries requiring “surgical intervention.” 42 U.S.C. §300aa- 11(a)(XI)(A); 42 U.S.C.
§300aa-11(c)(1)(D).
Although the Table intussusception claim allows any intussusception occurring
within 21 days of vaccination to be actionable, this timeframe is understood to be
overbroad. HHS emphasized in enacting the claim that the evidence best supported an
increased risk of intussusception only one to seven days following vaccination (with peaks
in the fourth and fifth days). 80 Fed. Reg. 35838. Thus, the 21-day timeframe set forth by
the Table is more reflective of the Program’s policy goals of generosity than what the
science supports – and this in turn suggests that onset timeframes that exceed the Table
3

Case 1:20-vv-00660-UNJ Document 28 Filed 08/23/22 Page 4 of 5
period are not likely to be medically reasonable, absent new research or discoveries
showing that post-vaccination intussusception onset can occur in a longer timeframe than
previously thought.
The above reasoning has been implicitly embraced in some causation-in-fact
cases in which a timeframe onset well outside the Table period was alleged. See, e.g.,
Carda v. Sec’y of Health & Hum. Servs., No. 14-191V, 2016 WL 3571539, at *2 (Fed. Cl.
Spec. Mstr. Nov. 16, 2017). In Carda, (which I decided), the petitioners failed to prove
that the rotavirus vaccine could cause transient intussusceptions that led to an acute
episode requiring surgical intervention eight weeks after a second dose. While the facts
of that case are not precisely on point, the result in Carda shows that an onset exceeding
the Table period is not likely to be medically or scientifically reliable.
I have provided Petitioner herein the opportunity to identify some evidence
suggesting that expert input would be worthwhile on this question of onset exceeding the
Table timeframe (short of simply filing a report). But Petitioner has failed to offer any
scientific/medical support for a longer onset. Nor has she pointed to any previous cases
where the rotavirus vaccine was shown (in the context of a non-Table claim) to cause
intussusception in a longer timeframe than what is established by the Table. Response
at 8. The fact that no cases specifically reject the concept is not the same as a conclusion
that evidence supports it.
Petitioner nevertheless asks for the opportunity to identify an expert who “might”
be able to support the claim with an opinion. Response at 8. But special masters are
tasked with determining what evidence is relevant or required to resolve a given case.
Vaccine Rules 3(b)(1), 7(a), 8(a). They may therefore deny requests to offer evidence
when the effort is likely to be futile. And here, Petitioner has not demonstrated any more
than a hope that a longer onset could be defended – despite a fair opportunity, she has
not offered any evidence at all that would suggest a 26 to 28 day post-vaccination onset
could be medically acceptable for an injury otherwise understood to occur close-in-time
to vaccination. Therefore, given the unique nature of an intussusception injury, and the
science supporting only a fraction of the Table’s onset timeframe, I do not find that expert
input on this matter is likely to be fruitful or result in an efficient and expeditious
determination.
There is no doubt that a petitioner’s inability to meet all the Table elements of a
given claim does not always mean the entire petition should be dismissed. Rather, for
some kinds of injuries, fairness dictates that the petitioner be allowed the opportunity to
prove a causation-in-fact version of their claim. For example, a flu-GBS Table claim is not
viable, even if onset occurs in the defined timeframe, when the injury turns out to be CIDP
4

Case 1:20-vv-00660-UNJ Document 28 Filed 08/23/22 Page 5 of 5
– yet such a claim provides reasonable grounds for a causation-in-fact claim. See, e.g.,
Nieves v. Sec’y of Health & Hum. Servs., No. 18-1602V, 2021 WL 841488 (Fed. Cl. Spec.
Mstr. Jan. 11, 2021) (dismissing Table flu-GBS claim where CIDP was established injury,
but allowing non-Table claim to proceed based on same set of facts). And I have tried
cases in which a claimant could not meet a Table claim’s onset timeframe, but it appeared
that some science existed to support the contention that a longer timeframe might be
medically acceptable. See, e.g., Greene v. Sec’y of Health & Hum. Servs., No. 11-631V,
2019 WL 4072110 (Fed. Cl. Spec. Mstr. Aug. 2, 2019) (dismissing non-Table claim of
brachial neuritis after Tdap vaccine; petitioner offered reasonable evidence that longer
onset was medically acceptable, even though he was ultimately unsuccessful), mot. for
review den’d, 146 Fed. Cl. 655, 669 (2020), aff’d, 841 F. App’x. 195, 205 (Fed. Cir. 2020).
But the idiosyncratic nature of intussusception as a vaccine injury calls for a different
outcome entirely. An onset of 26 to 28 days post-vaccination is simply not likely to be
medically acceptable, given what is known about intussusception.
For these reasons, Petitioner’s causation-in-fact claim for compensation is
DISMISSED. In the absence of a motion for review filed pursuant to RCFC Appendix B,
the Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of this
Decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they
file notices renouncing their right to seek review.
5