VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01375
Package ID: USCOURTS-cofc-1_20-vv-01375
Petitioner: ROBERT ANTHONY SIMEONE, III, as parent of R.S., a minor
Filed: 2020-10-13
Decided: 2023-09-06
Vaccine: DTaP
Vaccination date: 2017-09-01
Condition: acute encephalopathy
Outcome: denied
Award amount USD: 

AI-assisted case summary:
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.

Theory of causation field:
Petitioner Robert Anthony Simeone, III, on behalf of minor R.S., alleged that the DTaP vaccine administered on September 1, 2017, caused an acute encephalopathy, which later became chronic, autoimmune encephalitis and regressive encephalopathy. R.S. also received HiB and Hepatitis A vaccines on the same date. Petitioner recalled R.S. was sick with bilateral otitis media and a viral syndrome prior to vaccination and developed a fever within hours post-vaccination. The Chief Special Master denied compensation, finding petitioner failed to establish a cognizable injury, as no medical records substantiated an acute encephalopathy within the 72 hours post-vaccination, and personally-generated evidence (text messages, videos) was insufficient. The Court of Federal Claims upheld the denial, finding the Chief Special Master's decision was not arbitrary, capricious, or contrary to law, and that proceeding without a hearing was within the Special Master's discretion. Petitioner counsel was Robert Anthony Simeone, III (pro se). Respondent counsel was Emilie Williams. Chief Special Master was Brian H. Corcoran. Senior Judge was Loren A. Smith. The public decision does not describe a specific theory of causation or name medical experts. The outcome was denied.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01375-0
Date issued/filed: 2023-08-17
Pages: 15
Docket text: PUBLIC DECISION (Originally filed: 02/24/2023) regarding 54 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made. Emailed to Petitioner on 8/18/23 Modified on 8/18/2023 (tjk).
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DOCUMENT 2: USCOURTS-cofc-1_20-vv-01375-1
Date issued/filed: 2023-09-06
Pages: 7
Docket text: JUDGE VACCINE REPORTED OPINION reissuing 60 Judge Vaccine Order/Opinion. Signed by Senior Judge Loren A. Smith. (nck) Service on parties made. Emailed to Petitioner by tjk on 9/8/2023 (tjk).
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Case 1:20-vv-01375-LAS Document 63 Filed 09/06/23 Page 1 of 7
In the United States Court of Federal Claims
No. 20-1375
(Filed Under Seal: August 15, 2023)
Reissued: September 6, 20231
)
ROBERT ANTHONY SIMEONE, III, as )
parent of R.S., a minor, )
)
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
Robert Anthony Simeone, III, pro se, Savannah, TX, for petitioner.
Emilie Williams, Vaccine/Torts Branch, Civil Division, U.S. Department of Justice, Washington,
DC, for respondent.
OPINION AND ORDER
SMITH, Senior Judge
Petitioner, Robert Anthony Simeone, III, on behalf of his minor child, R.S., seeks review
of a decision issued by Chief Special Master Brian H. Corcoran denying his petition for vaccine
injury compensation. Petitioner brought this action pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (the “Vaccine Act”), alleging that the
diphtheria, tetanus, acellular-pertussis (“DTaP”) vaccine R.S. received on September 1, 2017,
caused R.S. to suffer an acute encephalopathy shortly after receiving the vaccine. The Chief
Special Master denied compensation, finding that petitioner did not establish a cognizable injury.
Ruling on Entitlement, ECF No. 54, at 2 [hereinafter Entitlement Decision]. Petitioner now
moves this Court to review the Entitlement Decision. For the reasons that follow, the Court
DENIES petitioner’s Motion for Review.
I. BACKGROUND AND PROCEDURAL HISTORY
On May 21, 2016, R.S. was born prematurely by two months. See Petitioner’s Exhibit
[hereinafter PX] 1, ECF No. 13. On September 1, 2017, R.S. received the DTaP vaccine, as well
1 An unredacted version of this opinion was issued under seal on August 15, 2023. The parties were given
an opportunity to propose redactions, but no such proposals were made.

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as the haemophilus influenzae type B (“HiB”) and Hepatitis A (“Hep A”) vaccines. PX3 at 1;
PX8 at 4–5. Petitioner recalled that R.S. was sick prior to receiving the vaccines. See Amended
Petition, ECF No. 40 at 6, 28 [hereinafter Am. Pet.] (“At the very same appointment he was
given the DTaP vaccine, R.S. was diagnosed with ‘bilateral otitis media’ (BOM) and a ‘viral
syndrome.’”); id. at 7 (“R.S. was battling bilateral otitis media, requiring antibiotics, [and] a viral
syndrome with a cough, requiring albuterol and budesonide . . . .”). Within a few hours of
vaccination, R.S. developed a fever. Id. at 12–13. R.S.’s parents did not seek immediate
medical attention for R.S. Id. at 13–14. At some point during the next three days, R.S. allegedly
experienced an acute encephalopathy that later resulted in chronic, autoimmune encephalitis and
regressive encephalopathy that persists to this day. Id. at 12. However, petitioner provided no
“medical records of an acute encephalopathy in the 72 hours following vaccine administration[.]
In fact, there are no medical records, whatsoever, recorded during the 72 hours post-
vaccination.” Petitioner’s Response to Order to Show Cause, ECF No. 39 at 2 (emphasis added).
On February 22, 2019 (eighteen months post-vaccination), R.S. was brought to
developmental-behavioral pediatrician Fadiyla Dopwell, M.D. PX15 at 1. During the visit, R.S.
was evaluated for developmental needs associated with premature birth, developmental delays,
and social communication issues. Id. Dr. Dopwell provided R.S.’s parents with handouts and
activities to promote developmental progress and referred them to websites for further
information about autism spectrum disorder. Id. at 5. On May 10, 2019, R.S. was seen again by
Dr. Dopwell, and she made similar clinical observations to the February 22, 2019, visit. PX16 at
1–5.
On September 30, 2019, R.S.’s parents sought a genetics consultation from Rachel
Lombardo, M.D., at the Children’s Dallas Genetic/Metabolic/Down Syndrome Clinic. PX55 at
3–5, 11. R.S. was reportedly referred to Dr. Lombardo because of “global delays and concern
for possible autism spectrum disorder.” Id. at 3. The main goal of the visit was allegedly to
obtain methylenetetrahydrofolate reductase (“MTHFR”) testing “to diagnose potential genetic
differences.” Id. Dr. Lombardo ultimately did not recommend MTHFR testing for R.S. Id. at 6.
On January 27, 2020, R.S.’s parents sought medical assistance for R.S. from an integrative
medicine family practitioner, Kenneth Bock, M.D. PX29 at 5–6. Dr. Bock evaluated R.S. and
diagnosed him with suspected neuroimmune disorder and regressive encephalopathy. Id. at 7.
In May 2020, R.S. was seen again by Dr. Bock for a range of treatments. See id. at 22–27.
Presently, R.S.’s symptoms remain largely unchanged. Am. Pet. at 12. None of R.S.’s treating
physicians concluded that R.S. sustained an encephalopathy associated with the September 1,
2017, DTaP vaccine. See Entitlement Decision at 3 n.4.
On or around September 1, 2020, the applicable three-year statute of limitations period
expired. 42 U.S.C. § 300aa-16(a)(2) (“[N]o petition may be filed for compensation under the
Program for such injury after the expiration of 36 months after the date of the occurrence of the
first symptom . . . .”). On October 13, 2020, petitioner filed a Petition with the Office of Special
Masters, amended on April 12, 2022, seeking compensation for vaccine-related injuries. See
generally Petition, ECF No. 1; see also Am. Pet. at 40. On September 14, 2021, respondent filed
its Motion to Dismiss, arguing exclusively that petitioner’s Petition was untimely. See
Respondent’s Motion to Dismiss, ECF No. 29. On January 6, 2022, Chief Special Master Brian
H. Corcoran deferred ruling on the timeliness of petitioner’s claim and ordered the parties to file
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supplemental briefs regarding the merits of petitioner’s claim. See January 6, 2022 Order, ECF
No. 36.
On February 24, 2023, the Chief Special Master dismissed petitioner’s claim, finding that
petitioner failed to establish that R.S. suffered a compensable injury.2 See Entitlement Decision
at 2. On March 24, 2023, petitioner filed a Motion for Review of Chief Special Master
Corcoran’s decision with this Court. See Petitioner’s Motion for Review, ECF No. 55
[hereinafter Pet.’s MFR]. On April 24, 2023, respondent filed its Response to petitioner’s
Motion for Review. See Respondent’s Response to Petitioner’s Motion for Review, ECF No. 59
[hereinafter Resp. to MFR]. Petitioner’s Motion is fully briefed and ripe for review.
II. STANDARD OF REVIEW
Under the Vaccine Act, this Court may review a Special Master’s decision upon the
timely request of either party. 42 U.S.C. § 300aa-12(e)(1)–(2). In reviewing such a request, this
Court may:
(A) uphold the findings of fact and conclusions of law . . . ,
(B) set aside any findings of fact or conclusion of law . . . found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law . . . , or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
Id. § 300aa-12(e)(2)(A)–(C). “Fact findings are reviewed . . . under the arbitrary and capricious
standard; legal questions under the ‘not in accordance with law’ standard; and discretionary
rulings under the abuse of discretion standard.” Munn v. Sec’y of Dep’t of Health & Hum.
Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
When reviewing a special master’s decision, this Court cannot “substitute its judgment
for that of the special master merely because it might have reached a different conclusion.”
Snyder ex rel. Snyder v. Sec’y of Health & Hum. Servs., 88 Fed. Cl. 706, 718 (2009). This Court
does not “reweigh the factual evidence, assess whether the special master correctly evaluated the
evidence, or examine the probative value of the evidence or the credibility of the witnesses—
these are all matters within the purview of the fact finder.” Porter v. Sec’y of Health & Hum.
Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011) (citing Broekelschen v. Sec’y of Health & Hum.
Servs., 618 F.3d 1339, 1349 (Fed. Cir. 2010)). “[R]eversible error is extremely difficult to
demonstrate if the special master has considered the relevant evidence of record, drawn plausible
inferences and articulated a rational basis for the decision.” Lampe v. Sec’y of Health & Hum.
Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000) (internal quotations and citation omitted). “[A]s
long as a special master’s finding of fact is ‘based on evidence in the record that [is] not wholly
2 The Chief Special Master did not decide whether petitioner’s claim was untimely nor whether the
applicable limitations period was tolled. Ruling on Entitlement at 12 n.8, ECF No. 54. In any case, the timeliness of
petitioner’s claim is not on review at this Court.
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implausible, we are compelled to uphold that finding as not being arbitrary or capricious.’”
Porter, 663 F.3d at 1249 (quoting Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328,
1338 (Fed. Cir. 2010)).
III. DISCUSSION
Petitioner argues that he presented sufficient evidence to establish that R.S. suffered an
injury—a Table encephalopathy, or an off-Table autoimmune encephalitis leading to
developmental regressions—under the Vaccine Act. See Pet.’s MFR at 1–2. Specifically,
petitioner argues that his testimonial evidence in the form of text messages and cell phone videos
should be considered sufficient contemporaneous evidence of R.S.’s encephalopathy in the
absence of medical records. See id. at 2–6. Petitioner further argues that he should be given a
hearing where he may present his arguments. See id. at 14. In response, respondent argues that
the Chief Special Master correctly found that petitioner failed to present sufficient evidence that
R.S. suffered a Table encephalopathy, or an off-Table autoimmune encephalitis leading to
developmental regressions. See Resp. to MFR at 7. Respondent further argues that a “Special
Master in a Vaccine Act case has broad discretion to determine whether a fact or entitlement
hearing is necessary to evaluate testimony, and the Act and the Vaccine Rules expressly
authorize a Special Master to resolve a case without such hearings.” Id. at 10. For the reasons
discussed below, the Court is inclined to agree with respondent.
A. Injury Requirement
Petitioners seeking recovery under the Vaccine Act must establish that a vaccine caused
the injury at issue. The Vaccine Act provides that such causation is established through (1) a
statutorily prescribed presumption of causation when the injury falls under the Vaccine Injury
Table (“Table injury”); or (2) proof of causation-in-fact when the injury is not listed in the
Vaccine Injury Table (“off-Table injury”). Althen v. Sec’y of Health & Hum. Servs., 418 F.3d
1274, 1278 (Fed. Cir. 2005) (internal citations omitted). To prove causation-in-fact, a petitioner
must
show by preponderant evidence that the vaccination brought about [petitioner’s]
injury by providing: (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.
Id. (citing 42 U.S.C. §§ 300aa-13(a)(1), -11(c)(1)(C)(ii)(I)).
However, as a prerequisite to establishing causation, a petitioner must show that a
cognizable injury actually occurred. See Broekelschen, 618 F.3d at 1346 (“[I]dentifying the
injury is a prerequisite to the [Althen] analysis.”); see also Lombardi v. Sec’y of Health & Hum.
Servs., 656 F.3d 1343, 1353 (Fed. Cir. 2011) (“In the absence of a showing of the very existence
of any specific injury of which the petitioner claims, the question of causation is not reached.”).
A petitioner must demonstrate more than a “symptom or manifestation of an unknown injury.”
Lombardi, 656 F.3d at 1353. Additionally, the Vaccine Act is clear that compensation may not
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be awarded on the basis of petitioner’s contentions alone, “unsubstantiated by medical records or
by medical opinion.” 42 U.S.C. § 300aa-13(a)(1); see Cucuras v. HHS, 993 F.2d 1525, 1528
(Fed. Cir. 1993) (“The Vaccine Act expressly bars the court or a special master from finding a
table injury ‘based on the claims of the petitioner alone, unsubstantiated by medical records or by
medical opinion.’” (quoting 42 U.S.C. § 300aa-13(a)(1))).
The Chief Special Master’s finding that petitioner failed to present sufficient evidence
that R.S. suffered a compensable injury for a Table or non-Table claim was not arbitrary,
capricious, an abuse of discretion, or contrary to law. Reviewing petitioner’s assertions of a
Table encephalopathy, the Chief Special Master wrote the following:
Table claimants seeking to prove a vaccine-caused encephalopathy must establish
both that the injured party experienced an “acute” encephalopathy—typically
evidenced by a decreased change in consciousness . . . of sufficient severity to
warrant hospitalization—and that the encephalopathy subsequently became
“chronic” (that is, it lasted for at least six months). The acute encephalopathy must
manifest within three days/seventy-two hours, and if alleged to have been
experienced by a child less than eighteen months old, must be “indicated by a
significantly decreased level of consciousness that lasts at least 24 hours.”
Entitlement Decision at 11 (emphasis in original) (internal citations omitted). For a non-Table
encephalopathy, the Chief Special Master explained that the claims must be supported by
preponderant evidence, and “that evidence must establish more than simply a subsequent
neurologically-derived symptom (since virtually any injury impacting the brain could be deemed
some form of encephalopathy).” Entitlement Decision at 11 (emphasis in original).
Here, the Chief Special Master found that petitioner had neither (1) presented any
medical records establishing an encephalopathy within seventy-two hours of vaccination, as
required for a Table claim, nor (2) presented any medical records to prove causation-in-fact for
an off-Table claim. Id. at 13; 42 C.F.R. § 100.3. Indeed, the petitioner plainly acknowledged
that he did not provide medical records for the critical time frame at issue. See Pet.’s MFR at 4
(stating that the contemporaneous text messages and cell phone videos “provide evidence for a
time period when there are no medical records at all”); Entitlement Decision at 4–5
(“Petitioner . . . acknowledges that he can point to no medical records establishing an acute
encephalopathy occurred in [the 72-hours-post-vaccination] timeframe.”). The Chief Special
Master found that petitioner had only provided “personally-generated” contemporaneous
evidence, such as text messages and cell phone videos produced by petitioner and his family, to
establish that R.S. experienced the claimed injury. Entitlement Decision at 12–14. The Chief
Special Master concluded that this evidence was insufficient to show that a compensable injury
occurred. See id. at 13 (“An encephalopathy is a particularly acute injury, and it must have some
record substantiation—meaning medical evidence that the allegedly-harmed child was so
severely ill that medical treatment was sought. Otherwise, it is beyond speculative to assume
that regression or other post-vaccination developmental issues are due to the vaccine . . . .”)
(emphasis in original). The Chief Special Master also noted that petitioner’s submitted records
suggest an alternative explanation for the alleged injury: a possible diagnosis of autism spectrum
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disorder. Id. at 14 n.9 (“[I]t appears treaters have directly diagnosed, or at least considered, an
autism spectrum disorder as explanatory [of R.S.’s developmental changes].”).
The Chief Special Master reviewed the evidence under the Vaccine Act’s injury
requirement and concluded that petitioner did not meet his evidentiary burden. The Vaccine Act
is clear that compensation may not be awarded on the basis of petitioner’s contentions alone,
“unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1); see
Cucuras, 993 F.2d at 1528 (“The Vaccine Act expressly bars the court or a special master from
finding a table injury ‘based on the claims of the petitioner alone, unsubstantiated by medical
records or by medical opinion.’” (quoting 42 U.S.C. § 300aa–13(a)(1))). This Court does not
“reweigh the factual evidence, assess whether the special master correctly evaluated the
evidence, or examine the probative value of the evidence or the credibility of the
witnesses—these are all matters within the purview of the fact finder.” Porter, 663 F.3d at 1249
(citing Broekelschen, 618 F.3d at 1349). The Court concludes that the Chief Special Master
considered the evidence in the record, drew plausible inferences, and articulated a rational basis
for his decision. See Lampe, 219 F.3d at 1360. Accordingly, the Court finds that the Chief
Special Master’s conclusion—that petitioner did not establish a cognizable injury—was not
arbitrary, capricious, an abuse of discretion, or contrary to law.
B. Dismissal of Petition Without Hearing
The Vaccine Act states that a special master “may conduct such hearings as may be
reasonable and necessary,” 42 U.S.C. § 300aa-12(d)(3)(B)(v), giving special masters “wide
discretion in conducting the proceedings in a case,” Burns v. Sec’y of Dep’t of Health & Hum.
Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). The Vaccine Act permits a special master to decline to
hold an evidentiary hearing. See Kreizenbeck v. Sec’y of Health & Hum. Servs., 141 Fed. Cl.
138, 139 (2018) (“[S]pecial masters are not obligated to hold an evidentiary hearing before
issuing an opinion.”). The Vaccine Rules were promulgated so as to not require the “routine use
of oral presentations, cross examinations, or hearings.” Id. at 139–40 (citing 42 U.S.C. § 300aa-
12(d)(2)(D)). If the special master affords a party “a full and fair opportunity to present its
case,” it is permissible to proceed with a ruling on the record. Spahn v. Sec’y of Health & Hum.
Servs., 133 Fed. Cl. 588, 600 (2017).
The Chief Special Master acted within his discretion when he decided to proceed without
a hearing. The Chief Special Master was not obligated to hold an evidentiary hearing but
provided an explanation for this decision to forego a hearing in this case. See Entitlement
Decision at 14–15 (stating that based on the record evidence, “it would be an unnecessary
expenditure of judicial resources to continue the case (no matter how heartfelt Petitioner’s good-
faith desire to maintain the case might be)”). Importantly, the Chief Special Master gave
petitioner a full and fair opportunity to prove his claim. See ECF Nos. 11, 16 (extensions of time
to file affidavits and medical records); ECF No. 36 (Order to Show Cause). The Chief Special
Master weighed the entire evidentiary record before him and concluded that petitioner failed to
provide any medical records or expert medical opinion supporting the assertion that R.S.
sustained the claimed injury within a reasonable timeframe following receipt of the September 1,
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2017, vaccine.3 See Entitlement Decision at 14–15. In any event, petitioners are not entitled to
an evidentiary hearing as of right. See Caron v. Sec’y of Health & Hum. Servs., 136 Fed. Cl.
360, 386 (2018) (internal citations omitted). Thus, the Chief Special Master acted within his
discretion when he decided to proceed without a hearing.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the Chief Special Master did not act
arbitrarily, capriciously, or contrary to law, nor abused his discretion. Accordingly, the Court
upholds the Chief Special Master’s decision and DENIES petitioner’s Motion for Review.
IT IS SO ORDERED.
Loren A. Smith
s/
Loren A. Smith,
Senior Judge
3 On March 24, 2023, petitioner introduced, for the first time, additional exhibits for this Court’s
consideration. See Petitioner’s Motion For Review at 14–18, ECF No. 55; Petitioner’s Exhibits 75–82, ECF No. 56.
However, Vaccine Rule 8(f)(1) provides that “[a]ny fact or argument not raised specifically in the record before the
special master will be considered waived and cannot be raised by either party in proceedings on review of a special
master’s decision.” R. Ct. Fed. Cl., App. B, 8(f)(1). Thus, this Court cannot consider exhibits introduced by
petitioner for the first time in his Motion for Review.
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