C.J.B. v. HHS - Pneumococcal, encephalopathy, speech abnormality, language regression, and/or significant aggravation of an underlying condition, including but not limited to a genetic mutation (2022)

On June 22, 2020, Jeffrey Bello and Oksana Y. Oganesov, parents of C.J.B., a minor, filed a petition for compensation under the National Childhood Vaccine Injury Compensation Program.

They alleged that their son developed encephalopathy, speech abnormality, language regression, and/or significant aggravation of an underlying condition as a result of vaccinations received on June 23, 2017, when he was approximately 15 months old. The vaccines administered were Pentacel and pneumococcal conjugate vaccines.

The petition was filed by Phyllis Widman of Widman Law Firm LLC. The respondent was the Secretary of Health and Human Services, represented by Benjamin Warder of the U.S.

Department of Justice. Chief Special Master Brian H.

Corcoran reviewed the petition and ordered the petitioners to show cause why the case should not be dismissed, noting that the claim appeared to be one that rarely resulted in a favorable decision and that the preliminary review of the record did not suggest this was one of those rare cases. After reviewing briefs from both parties, the Chief Special Master dismissed the case.

He found that the petitioners failed to demonstrate, based on the medical record, that C.J.B. experienced the kind of true encephalopathy required for non-Table claims to find subsequent developmental regression associated with it, and therefore had not established a compensable injury. The Chief Special Master noted that the critical timeframe for establishing a causal relationship was within the first month of vaccination, and the medical records did not suggest a brain injury sufficient to cause developmental delay or regression.

He also found that the Chief Special Master did not abuse his discretion by dismissing the case without an evidentiary hearing or expert report, as the petitioners had ample opportunity to present their case and failed to provide sufficient evidence of a brain injury. The court upheld the Chief Special Master's decision, denying the petition for compensation.

Petitioners appealed the decision to the Court of Federal Claims. Chief Judge Elaine D.

Kaplan reviewed the case and denied the motion for review. The court found that the Chief Special Master's decision was neither arbitrary, capricious, nor contrary to law.

The court agreed that the medical records did not demonstrate that C.J.B. suffered a vaccine-related encephalopathy. The court noted that the medical records did not reflect the rapid decline in C.J.B.'s health and development that his parents described in their affidavit, and that the assertions in the affidavit were not supported by the medical records.

The court also found that none of the medical professionals who treated C.J.B. in the months following his vaccinations diagnosed him as suffering from an encephalopathy. The court further found that the Chief Special Master did not abuse his discretion by dismissing the case without an evidentiary hearing or expert report, as the petitioners had been given a full and fair opportunity to present their case in writing and had failed to provide sufficient evidence of a brain injury.

The court also denied a motion to submit additional telephone records, finding that the records were not presented to the Special Master and did not cover the critical timeframe for establishing causation. The court upheld the Chief Special Master's decision, denying the petition for compensation.