Robert Anthony Simeone, III, As Parent Of R.S., A Minor v. HHS - DTaP, acute encephalopathy (2023)

Robert Anthony Simeone, III, as the parent of R.S., a minor, filed a petition for vaccine injury compensation under the National Vaccine Injury Compensation Program. The petition alleged that the DTaP vaccine administered to R.S. on September 1, 2017, caused an acute encephalopathy.

R.S. was born prematurely and also received the HiB and Hepatitis A vaccines on the same date. The petitioner recalled that R.S. was ill with bilateral otitis media and a viral syndrome prior to vaccination.

Within hours of receiving the vaccines, R.S. developed a fever. The petitioner alleged that R.S. experienced an acute encephalopathy within three days of vaccination, which subsequently led to chronic, autoimmune encephalitis and regressive encephalopathy.

However, the petitioner acknowledged that no medical records substantiated an acute encephalopathy within the 72 hours following vaccination. R.S. was later evaluated by developmental-behavioral pediatrician Fadiyla Dopwell, M.D., for developmental delays and social communication issues, and was referred to information regarding autism spectrum disorder.

A genetics consultation was sought due to global delays and concern for possible autism spectrum disorder. An integrative medicine practitioner, Kenneth Bock, M.D., diagnosed R.S. with suspected neuroimmune disorder and regressive encephalopathy.

None of R.S.'s treating physicians concluded that R.S. sustained an encephalopathy associated with the September 1, 2017, DTaP vaccine. The respondent filed a motion to dismiss, arguing the petition was untimely.

Chief Special Master Brian H. Corcoran deferred ruling on timeliness and ordered supplemental briefs on the merits.

On February 24, 2023, the Chief Special Master denied compensation, finding that the petitioner failed to establish a cognizable injury because no medical records substantiated an acute encephalopathy within the required timeframe, and the evidence presented was insufficient. The Chief Special Master noted that the petitioner relied on personally-generated evidence, such as text messages and cell phone videos, which were deemed insufficient to prove an acute encephalopathy.

The Chief Special Master also noted that the submitted records suggested an alternative explanation for R.S.'s developmental changes, such as autism spectrum disorder. The petitioner moved this Court for a review of the Chief Special Master's decision.

Senior Judge Loren A. Smith reviewed the decision and denied the petitioner's motion.

The Court upheld the Chief Special Master's findings, concluding that the decision was not arbitrary, capricious, an abuse of discretion, or contrary to law. The Court found that the Chief Special Master acted within his discretion by proceeding without a hearing, as the petitioner was given a full and fair opportunity to present his case, and the Chief Special Master articulated a rational basis for the decision based on the record evidence.

The petition was ultimately denied.