Opinion

FELIX v. SECRETARY OF HEALTH AND HUMAN SERVICES

Court
United States Court of Federal Claims
Filed
Jun 4, 2024
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 32.9%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1728V

STEPHANIE FELIX and ASHTON Chief Special Master Corcoran

FELIX, on behalf of E.A.F.,

Petitioners, Filed: April 29, 2024

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

John Leonard Shipley, Davis, CA, for Petitioners.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for

Respondent.

DECISION1

Stephanie and Ashton Felix, acting on behalf of their minor child E.A.F., have filed

a Petition under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-

10, et seq.2 (the “Vaccine Program”), regarding E.A.F.’s development of immune

thrombocytopenic purpura (“ITP”) after receipt of a measles-mumps-rubella (“MMR”)

vaccine on August 6, 2018. The case was assigned to the Special Processing Unit of the

Office of Special Masters (the “SPU”).

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am

required 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). 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 (2018).

Based on a review of all submitted evidence and arguments, and for the foregoing

reasons, I hereby GRANT Respondent’s Motion to Dismiss the claim for failure to

establish the statutory severity requirement. Resp. Motion to Dismiss (ECF No. 27), citing

Section 11(c)(1)(D)(i). Accordingly, the claim is DISMISSED.

I. Procedural History

On August 19, 2021, Petitioners initiated their claim “out of an abundance of

caution with respect to the applicable statute of limitations.” Petition (ECF No. 1) at ¶ 16.

Petitioners subsequently obtained and filed supporting medical records, and an initial

statement from Stephanie Felix, as Exhibits (“Exs.”) 1 – 12. On May 13, 2022, Petitioners

amended their petition in relevant part, clarifying that they alleged that E.A.F.’s ITP

caused residual effects and complications lasting for more than six months. Amended

Petition (ECF No. 18) at ¶ 15. The case was assigned to the SPU. Order (ECF No. 20).

On August 7, 2022, Respondent filed his Rule 4(c) Report (ECF No. 26) and a

Motion to Dismiss the Claim for Failure to Satisfy the Severity Requirement (ECF No. 27).

See also Section 11(c)(1)(D)(i). On December 5, 2022, Petitioners filed a supplemental

statement from Stephanie Felix as Ex. 13 (ECF No. 29) and their Opposition to

Respondent’s Motion to Dismiss (ECF No. 30) (“Pet. Opp.”).

I warned Petitioners that the existing record did not appear to establish six months’

severity – but allowed them to file any additional fact evidence. Scheduling Order filed

June 23, 2023 (ECF No. 33).3 Petitioners filed three additional witnesses’ statements.

Exs. 14, 16 – 17,4 followed by Petitioners’ Brief on August 21, 2023 (ECF No. 37).

Respondent filed a Response on October 18, 2023 (ECF No. 40). Petitioners filed a Reply

on October 27, 2023 (ECF No. 41). The matter is ripe for adjudication.

II. Medical Records

E.A.F. was born without complications in fall 2015, was generally healthy, and had

an established pediatric care practice (“PCP”). See generally Exs. 6, 9, 10. E.A.F. was

3 In opposing Respondent’s motion to dismiss, Petitioners requested a further opportunity to file both fact

evidence and/or an expert child psychiatrist/ psychologist’s opinion. See Pet. Opp. At n. 3. But experts are

not routine in SPU cases, see Scheduling Order filed May 20, 2022 (ECF No. 20) at 1. Petitioners were

ordered to first seek statements from E.A.F.’s treaters and any other fact witnesses, and any other evidence

that may be available, to establish the requisite factual foundation for their claim. Scheduling Order filed

June 23, 2023 (ECF No. 33) at 2 – 3.

4 All witness statements filed in the case were sworn under penalty of perjury. See 28 U.S.C.A. § 1746

(providing that such a declaration may be afforded “like force and effect” as an affidavit).

2

receiving vaccines on an alternative schedule. Ex. 6 at 76 (vaccination summary); see

also, e.g., id. at 12, 24, 30, 32 (PCP records noting parents’ instructions regarding

vaccinations).

At a July 23, 2018, well-child visit, pediatrician Sarah Giguere, D.O., assessed

E.A.F. with constipation and anemia due to high milk intake. Ex. 6 at 29. E.A.F. also

received hepatitis A and varicella vaccines at this encounter. Id.

At an August 6, 2018, follow-up with Dr. Giguere, E.A.F. received the at-issue

MMR vaccine. Ex. 6 at 32. Fifteen (15) days later, on August 21, 2018, Dr. Giguere saw

E.A.F. on an urgent basis. Ex. 6 at 33. His mother recounted that E.A.F. had developed

symptoms including “several bruises on his body over the past 24 – 48 hours after leaving

school.” Id. “CPS [child protective services] has been called and questioned him.” Id.5 Dr.

Giguere’s assessment was thrombocytopenia6 potentially representing ITP, which should

be further evaluated in a hospital emergency room. Id. at 34.

Accordingly, later that same day, the mother brought E.A.F. to the Rady Children’s

Hospital (“RCH”) emergency room. Ex. 2 at 17. A complete blood count (“CBC”) revealed

a low platelet count of 7,000. Id. at 21. E.A.F. was assessed with “severe

thrombocytopenia, likely acute ITP” and admitted to the hematology-oncology floor to

receive IVIg. Id. at 23. After receiving one dose of IVIg, E.A.F.’s platelet count had risen

to 20,000. Id. at 30, 49.

On August 22, 2018, at 12:00 a.m., Jenny Kim, M.D., a pediatric hematology-

oncology fellow, assessed that E.A.F. was likely “Ok to [discharge] today with repeat

[bloodwork] in 2 days. If [platelets] dropping or new bleeding [symptoms,] would repeat

IVIg dose.” Ex. 2 at 29.

The August 22, 2018, RCH discharge summary notes E.A.F.’s diagnosis of ITP,

as well as mild anemia (attributed to his previously-noted high milk intake) for which he

had been started on daily iron. Ex. 2 at 14. E.A.F. would “return to clinic on 8/24 for CBC

check and iron studies. Would hold vaccines (except influenza vaccine) for at least 6

months after IVIg. He may not have full response to vaccines after recent IVIg

administration.” Id. Finally, the family was instructed to “avoid rough play.” Id. at 15.

5 Later that day, the mother recounted that Dr. Giguere “discussed CPS but thought mom should bring

E.A.F. to the ED for further work-up.” Ex. 2 at 17.

6 Thrombocytopenia is defined as a decrease in the number of platelets. Dorland’s Medical Dictionary

Online, https://www.dorlandsonline.com/dorland/definition?id=49875&searchterm=thrombocytopenia (last

accessed Apr. 24, 2024).

3

Repeat CBCs (all performed at RCH) revealed a platelet count of 140,000 on

August 24, 2018;7 117,000 on September 17, 2018; 72,000 on October 11, 2018; and

90,000 on October 18, 2018. Those CBCs also tested E.A.F.’s iron levels. Ex. 2 at 47 –

52; Ex. 4 at 1 – 7.

Two months after the ITP onset and hospitalization, on October 22, 2018, Jennifer

Han, M.D., a pediatric hematology-oncology fellow at RAH, saw E.A.F. for a single

“routine follow-up.” Ex. 2 at 49. Dr. Han reviewed the interim platelet counts (listed above),

and the family’s history of “No new petechiae. No severe bruising. Mild bruising to bilateral

shins. Doing well overall in the interim.” Id. Dr. Han assessed that E.A.F. was a “3 y.o.

previously healthy male with ITP with overall stable platelet count and iron deficiency

anemia that is improving on iron supplementation.” Id. at 48. She offered the following

plan: “Avoid aspirin and NSAIDs. Call clinic with bleeding symptoms. Call clinic prior to

invasive procedures. Discharge from clinic. We also reviewed that he should not have

any live vaccines for 6 – 12 months after IVIg, and no rough play while thrombocytopenic.

Family expressed understanding and agreement with the plan. Labs with CBCd in 2

weeks. RTC [return to clinic] in 4 weeks for labs (CBC, diff, iron studies) and exam.” Id.

Further CBCs (performed at RCH) revealed E.A.F.’s platelet count to be 166,000

on November 5, 2018; 225,000 on December 12, 2018; and 301,000 on April 1, 2019.

Ex. 8 at 8, 10; Ex. 2 at 57. However, there were no further evaluations at RCH, or with

any other medical provider, during this time period.

On April 4, 2019, the mother brought E.A.F. to an urgent care center for evaluation

of a generalized rash, noting his prior history of ITP. Ex. 3 at 8. They were sent to

pediatrician Stephanie Cone, M.D., who found a rapid strep test to be positive, assessed

scarlet fever, and prescribed amoxicillin. Ex. 2 at 35 – 36.

On July 8, 2019, the pediatrician Dr. Giguere offered conservative management

for E.A.F.’s symptoms of abdominal pain, decreased appetite, constipation, and an oral

ulcer. Ex. 6 at 38 – 39. Dr. Giguere also assessed that E.A.F.’s spontaneous nose bleeds

represented vasomotor rhinitis. Id. at 38

At an October 14, 2019, well-child visit, Dr. Giguere exempted E.A.F. from

receiving future MMR vaccines, and recorded that someone had reported E.A.F.’s case

to VAERS. Ex. 6 at 45. Dr. Giguere also assessed E.A.F. to be a “4 y.o. healthy male with

7 A comment on the August 24, 2018, CBC reads: “The reported platelet count may be inaccurate due to

platelet clumping. Platelets appear adequate on peripheral blood smear.” Ex. 2 at 47.

4

normal growth and developmental milestones.” Id. at 48. The only treatment provided was

a prescription steroid for eczema. Id.

On March 23, 2020, pediatrician Karen S. Loper, M.D., evaluated E.A.F. for a

recent history of cough, throat pain, and swollen lymph nodes. Ex. 6 at 51. He was

assessed with strep A pharyngitis, to be treated with amoxicillin. Id. at 53.

On May 27, 2020, a pediatric nurse practitioner (“NP”) administered E.A.F.’s

second Hep B vaccine. Ex. 6 at 55 – 56. The NP noted both E.A.F.’s history of ITP, and

a current “assessment and plan” of iron deficiency anemia secondary to inadequate iron

intake, upon ordering a CBC. Id. Afterwards, a June 19, 2020, CBC found a platelet count

of 297,000. Ex. 2 at 59.

On June 26, 2020, Dr. Giguere recorded that the mother wanted E.A.F. to receive

“either polio or varicella” vaccine on that date. Ex. 6 at 58. After further discussion, E.A.F.

received an inactivated polio vaccine (“IPV”). Id. Dr. Giguere also recorded that the last

CBC was “completely normal” but “mom prefers to get CBC after every visit.” Id.

Afterwards, a July 7, 2020, CBC found a platelet count of 274,000. Ex. 2 at 60.

On July 24, 2020, Dr. Giguere administered a varicella vaccine to E.A.F., and

recorded that his “vaccines [were] now UTD [up to date] for MMR exception for one year,

school note provided.” Ex. 6 at 64.

E.A.F. received urgent care for pharyngitis on July 31, 2020, and for an upper

respiratory infection on October 9, 2020. Ex. 3 at 5 – 6, 10 – 12.

On April 8, 2021, E.A.F. received a DTaP vaccine at the pediatrics practice. Id. at

67. On May 17, 2021, Dr. Giguere saw E.A.F. for abdominal pain, constipation, and

wheezing. Id. at 69 – 71. No further medical records have been filed.

III. Sworn Statements

I have fully reviewed the sworn statements from E.A.F.’s mother (one of the co-

Petitioners), grandmother, caregiver, and the aforementioned pediatrician Dr. Giguere.

To briefly summarize, the mother attests that RCH hematology team wanted to

continue monitoring E.A.F.’s platelet counts, restrict physical activity, and restrict further

vaccinations for at least six months after his August 2018 MMR vaccine and ITP acute

course. Ex. 5 at ¶¶ 13, 15; Ex. 13 at ¶¶ 3 - 4. She recalls that an (unnamed) RCH

hematologist repeated this advice in a November 2018 telephone call (although E.A.F.’s

platelet count had normalized by that time). Ex. 5 at ¶ 17; Ex. 13 at ¶ 5. The family could

5

not obtain insurance coverage or otherwise afford further hematology appointments. Ex.

5 at ¶¶ 18, 21; Ex. 13 at ¶¶ 5, 8. However, the mother “kn[e]w that [E.A.F.’s] primary care

doctor was speaking with the hematologist regarding his ongoing condition and

monitoring of his condition.” Ex. 5 at ¶ 21. She maintains that E.A.F.’s physical activity,

receipt of further vaccines, and psychological health were negatively impacted for over

six months, based on instructions from his treating providers. Ex. 5 at ¶¶ 22 – 24; Ex. 13

at ¶¶ 9 – 12.

The grandmother lives several hundred miles away but visited regularly. Ex. 16 at

¶ 2. As a longtime registered nurse with training in pediatrics, she “knew that it was critical

[for E.A.F.] to avoid physical activity that could result in internal bleeding and all

precautions should be taken.” Id. at ¶ 3. The grandmother avers that for months, E.A.F.’s

physical activity was restricted, and he wore a protective helmet which she believed was

recommended by an unspecified doctor. Id. at ¶ 4 – 7.

The caregiver recalls taking “extraordinary steps to restrict E.A.F.’s activities to

keep him safe,” including “wear[ing] the helmet provided by his mother,” for more than six

months. See Ex. 14 at ¶¶ 6 - 9. E.A.F.’s ITP acute course and the subsequent restrictions

impacted his physical, emotional, and mental development. Id. at ¶¶ 9 – 13.

Finally, Dr. Giguere recalls being E.A.F.’s “primary pediatrician at all times relevant

to his treatment for ITP.” Ex. 17 at ¶ 3. Dr. Giguere confirms that after seeing E.A.F. for

administration of his MMR vaccine and tentatively assessing him with ITP in August 2018,

she did not personally evaluate him for nearly a year. Id. at ¶¶ 4 – 9. Dr. Giguere does

not attest that she or the pediatrics practice had any coordination of E.A.H.’s care with

the RCH hematology team. See generally Ex. 17. But she avers:

I understand that E.A.F.’s platelet levels returned to normal by November

5, 2018, and remained within the normal range for all subsequent testing.

However, I viewed certain treatment and restrictions as medically prudent

despite these test results. For example, I believe it was prudent to restrict

E.A.F.’s physical interactions for the six (6) months following his ITP

diagnosis. I do not think it would have been advisable to allow him to

unnecessarily risk being injured by participating in potentially rough play

with other kids during this timeframe. I also think it was necessary to restrict

the vaccinations E.A.F. received for the six (6) months following his ITP

diagnosis. Finally, I believe that it was prudent to delay E.A.F. receiving

another MMR vaccine until June 26, 2020, as a result of his ITP diagnosis.

I view all of these restrictions as part of his ongoing medical care, and

sequela, from his ITP injury/ illness.

6

Ex. 17 at ¶ 12.

IV. Parties’ Arguments

Petitioners maintain that they can establish severity despite a relevant, recent

Federal Circuit decision, Wright v. Sec’y of Health & Hum. Servs., 22 F.4th 999, 1005

(Fed. Cir. 2022), that suggests mere ongoing monitoring of ITP is not evidence of severity.

Wright, they argue, turned on a treater’s affirmative, specific assessment that the

vaccinee’s ITP had “resolved,” even though treaters thereafter continued to monitor

platelet levels. Pet. Opp. at 10; Pet. Brief at 4. Here, in contrast, despite E.A.F.’s platelet

levels returning to normal, E.A.F.’s pediatrician Dr. Giguere avers that it was “medically

prudent” to restrict his physical activity and vaccinations for more than six months, as part

of his ongoing medical treatment for ITP. Pet. Opp. at 4 – 5. Petitioners further aver that

the additional fact witnesses’ statements demonstrate how these restrictions impacted

E.A.F.’s physical and emotional development. Id. at 5. Petitioners therefore argue that

they have established ITP residual effects and complications lasting for over six months.

In maintaining that severity is not met, Respondent emphasizes that all objective,

contemporaneous evidence indicates that E.A.F.’s ITP resolved less than six months

post-vaccination and onset. Resp. Response at 9. Even considering the additional sworn

statements, there is not preponderant evidence that any physician ordered ongoing

physical activity restrictions after E.A.F.’s platelet count had normalized. Resp. Response

at 10. Hematologist Dr. Han’s October 2018 note cautioned against rough play only “while

thrombocytopenic,” and that Dr. Giguere’s 2023 statement “reads as a comment on the

reasonableness of the course that was taken, and not a recitation of her real-time

recommendation.” Id. (internal citations omitted). The other witnesses’ assessments are

rebutted by the medical records, which indicate normal growth and development. Resp.

Response at 10 – 11. “The record therefore demonstrates that to the extent Petitioners

restricted E.A.F.’s activities after November of 2018, it was not medically directed or

necessary. While these activities may have been motivated by well-meaning parental

concern,” they do not constitute “residual effects or complications” under Section

11(c)(1)(D)(i). Id. at 11, citing Wright, 22 F.4th at 1004.

V. Applicable Legal Standards

In another recent decision, I discussed at length the legal standards governing the

burden of proof for Table claims, the analysis of fact evidence, ruling on the record, and

the six-month severity requirement at Section 11(c)(1)(D)(i) (both generally, and applying

to ITP in particular). I hereby fully adopt and incorporate herein that discussion, in

Sections IV and V of Michie v. Sec’y of Health & Hum. Servs., No. 19-0453V, 2023 WL

10410004, at *4-10 (Fed. Cl. Spec. Mstr. Dec. 4, 2023). There, I noted that ITP’s objective

7

hallmark is an abnormally low platelet count. Michie, 2023 WL 10410004, at *6; see also

42 C.F.R. § 100.3(c)(7) (providing that ITP “is defined by the presence of clinical

manifestations, such as petechiae, significant bruising, or spontaneous bleeding, and by

a serum platelet count less than 50,000/mm3 with normal red and white blood cell

indices”) (emphasis added).

As previously emphasized, the Federal Circuit has established that under Section

11(c)(1)(D)(i), the phrase “residual effects” means “something remaining or left behind

from a vaccine injury,” that “never goes away or recurs after the original illness.” Wright,

22 F.4th at 1005. The phrase “is focused on effects within the patient, particularly lingering

signs and symptoms of the original vaccine injury.” Id. at 1006. Put another way “[a]

residual effect must be a change within the patient that is caused by the vaccine injury.”

Id. at 1001 (emphasis added).

VI. Analysis

E.A.F. fortunately recovered from ITP well within six months after the August 2018

vaccination and onset and did not suffer any recurrence of that condition. Thus, E.A.F.’s

parents face the not-uncommon challenge of establishing that this acute condition

nevertheless caused “residual effects” rendering them eligible for compensation under

the Act.

I find no reason to doubt Petitioners’ explanation that they were unable to obtain

insurance coverage or otherwise afford hematology evaluations after October 22, 2018.

But shortly after that date, E.A.F.’s platelet level normalized – and never again objectively

fell to levels consistent with ITP. And there is insufficient evidence of any medical

provider’s decision to maintain physical activity restrictions beyond that point. Most

persuasive is the hematologist’s previous, specific explanation that E.A.F. should be

restricted from rough play “while thrombocytopenic.” Ex. 2 at 48.8 Of course, E.A.F. was

never again thrombocytopenic.

It is also reasonable to presume that any ongoing restrictions would have been

noted in contemporaneous medical records – but no such documentation exists. See

Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (holding

8 The hospital’s website explains further, in plain language:

Thrombocytopenia is when there aren’t as many normal platelets in the blood as there

should be. Platelets… help the blood clot… Children with a low platelet count should take

care to avoid injuries, especially to the head, because of the risk of bleeding.

Rady Children’s Hospital, Thrombocytopenia, https://www.rchsd.org/health-article/thrombocytopenia/ (last

accessed Apr. 26, 2024).

8

that medical records are generally given weight than later recollections); see also Leming

v. Sec’y of Health & Hum. Servs., 161 Fed. Cl. 744, 760 (2022) (explaining that a reliance

on the contemporaneous medical records did not reflect “any lack of sincerity or bad faith

on Ms. Leming’s part in reporting what she understood Dr. Forbes’ advice to be”), not

disturbed on appeal, -- F.4th ----, 2024 WL 1608658 (Fed. Cir. 2024).

Dr. Giguere’s later statement does not cure this deficiency in the claim. First, she

does not attest to any particular expertise in treating ITP, or that she was coordinating

with the hematology team on E.A.F.’s ongoing care. She also does not explain why it

would be medically “prudent” or necessary to restrict the activity of a child whose repeat

CBCs and clinical presentation were otherwise consistently recorded to be normal. And

as Respondent observes, Dr. Giguere seems to endorse a course of conduct after the

fact, rather than describe real-time medical instructions – which again, are not

documented in the medical records. Again – well before expiration of the severity period,

E.A.F. appears to have recovered from ITP, and it has not recurred. Ex. 6 at 48 (Dr.

Giguere’s medical record assessment that E.A.F. was “healthy… with normal growth and

developmental milestones” over one year after the vaccination and onset); accord Ex. 17

at ¶ 10 (Dr. Giguere’s affidavit).

My conclusion encompasses Petitioners’ allegations of psychological distress.

Although psychological distress due to a vaccine injury can be a reasonable and related

sequela of some injuries, this kind of injury (which is insidious and often not characterized

by painful symptoms), coupled with the fact that it occurred to a very young child, is not

one that is likely to involve such sequela in the first place. It is simply unlikely that ITP in

a minor would be associated with subsequent psychological effects sufficient to satisfy

the severity requirement. Wright v. Sec’y of Health & Hum. Servs., 2019 WL 1061472, at

*11 - 13 (Fed. Cl. Spec. Mstr. Jan. 18, 2019) (finding no contemporaneous medical record

documentation of the alleged psychological effects, and that a later-retained expert’s

opinion was “conclusory” and based on parents’ assertions), reversed on other grounds,

146 Fed. Cl. 608 (2019), remanded, 2020 WL 6281782 (Fed. Cl. Spec. Mstr. Sept. 25,

2020), reversed, 22 F.4th 999 (Fed. Cir. 2022). Similarly, here, the medical records do

not document any concerns, and to the contrary, indicate that E.A.F. was developing

normally.9

9 I also recognize Petitioners’ assertion that E.A.F.’s repeated blood draws were “traumatic.” Pet. Opp. at

n. 4. But they have not distinguished their case from Wright, in which the Federal Circuit held that such

blood draws in a similarly-aged child did not fulfill the severity requirement. Wright, 22 F.4th 999, 1007

(characterizing such blood draws as “routine”).

9

The only other evidence of severity pointed to by Petitioners is the fact that

vaccination was not recommended by later treaters. In particular, a hematologist

determined that E.A.F. should not receive further vaccines (except flu) for over six months

– based on the reasoning that his IVIg infusion may prevent a “full response.” Ex. 2 at 14,

48; accord Ex. 6 at 76 (pediatrician’s immunization records).10 E.A.F.’s pediatrician also

granted a longer exemption from MMR vaccines. Ex. 6 at 45, 64; see also Ex. 17 at ¶ 12

(attesting that this was “medically prudent”).

However, these kind of treatment recommendations do not establish severity

either. Petitioners have only asserted “concern about the impact [these vaccine

restrictions] might have on [E.A.F.’s] health,” Ex. 13 at ¶ 11 (emphasis added). This falls

short of any actual demonstrated impact, as Wright would require. See, e.g., Michie, 2023

WL 10410004, at *7-8 (“lingering risk of a future injury after a second vaccination… is not

evidence of ‘effects within the patient’”); Leming, 2022 WL 3371016, at *8 (Fed. Cl. Spec.

Mstr. Jan. 26, 2022) (concluding that a restriction against further vaccines did not

constitute evidence that ITP “or any related immunodeficiency persisted for more than six

months”).

Conclusion

For the reasons explained above, Petitioners have failed to establish that E.A.F.

suffered from ITP or its residual effects or complications for over six months, under the

meaning of Vaccine Act Section 11(c)(1)(D). Accordingly, this claim must be dismissed.

The Clerk of the Court is directed to enter judgment in accordance with this Decision.11

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

10 But see Resp. Response at 2, and above summary of the medical records, noting that Petitioners had

previously instituted an alternative schedule which spaced out E.A.F.’s vaccinations.

11 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.

10

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.