Opinion

KLEIN v. SECRETARY OF HEALTH AND HUMAN SERVICES

Court
United States Court of Federal Claims
Filed
Apr 15, 2026
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1239V

ABRAHAM KLEIN and SHIFRA Chief Special Master Corcoran

KAHAN, parents and natural guardians

of C.K., a minor, Filed: February 17, 2026

Petitioners,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Robert Joel Krakow, Law Office of Robert J. Krakow, P.C. New York, NY, for Petitioner.

Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING

TABLE CLAIM AND TRANSFER ORDER 1

On April 19, 2021, Petitioners initiated this action on behalf of their minor child,

C.K, for compensation under the National Vaccine Injury Compensation Program, 42

U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioners allege that C.K. developed

immune thrombocytopenic purpura (“ITP”) – a Table injury – after receiving measles-

mumps-rubella (“MMR”), influenza, and varicella vaccines on October 17, 2018. Pet. at

1, ECF No. 1. Petitioners alternatively allege (as an off-Table claim) that C.K.’s

vaccinations were the cause-in-fact of C.K.’s ITP. Id. The claim was assigned to the

“Special Processing Unit” (the “SPU”).

1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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 Ruling 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).

Respondent filed his Rule 4(c) Report in defense of this case on October 22, 2024.

Respondent’s Report, ECF No. 44. In it, he argued that the onset of C.K.’s injury did not

occur within seven to thirty days of vaccination (as required for a Table ITP claim). Id. at

11. Rather, the medical records establish “the onset of C.K.’s ITP occurred no earlier than

late December 2018 which was [75] days after her MMR vaccination,” and thus well

outside the Table’s window. Id. (citing Ex. 1 at 17, 21; Ex. 2 at 29, 35, 39) (emphasis in

original). And, even Petitioners’ affidavits support an onset that occurred in early

December (approximately 47 days post vaccination) - still outside the Table timeframe.

Id. at 11-12 (citing Ex. 8 at 1; Ex. 9 at 2-3; Ex. 10 at 2).

Because Respondent’s objections appeared to have some basis, I issued an Order

to Show Cause identifying the critical deficiencies apparent from the filed record related

to the onset of C.K.’s ITP and noting that dismissal of the Table claim is likely for this

reason unless Petitioners can better substantiate it. ECF No. 45. I also noted that a

second issue exists related to Petitioners’ Table ITP claim, as the filed record shows C.K.

had an intervening viral infection (evidenced by a fever) between the MMR vaccine and

onset of her ITP, which is likewise an exclusionary criterion for a Table ITP claim. See id.

at 1, n.2 (citing Ex. 2 at 29; Ex. 10 at 2). In reaction, Petitioners confirmed that no

outstanding relevant medical evidence exists, and requested the opportunity to retain an

expert to support “a causation-in-fact claim that the MMR vaccination administered to

C.K. caused her [ITP].” ECF No. 47 at 2.

The existing medical record supports Respondent’s onset objection. C.K. received

the subject MMR vaccine on October 17, 2018. Ex. 1 at 21. Approximately 77 days post

vaccination, on January 2, 2019, Petitioners brought C.K. to her pediatrician with reports

of bruising over the left lower quadrant. Id. at 17. At that time, Petitioners stated that C.K.

had been “having bruising over the past few days” – meaning since no later than the last

days of December 2018. Id. (emphasis added). A physical examination revealed

scattered petechiae, a hematoma on the lower left quadrant, and other scattered bruises

including on the chin and lower extremities. Id. The pediatrician suspected C.K. had ITP

(though a complete blood count was within normal limits). Id. at 18.

Petitioners then took C.K. to the emergency room (“ER”) the same day, reporting

that they “first noticed bruising to lower left [abdomen] yesterday[,]” January 1, 2019 (thus

76 days post vaccination); C.K. was admitted that day. Ex. 2 at 29, 35. The attending

physician noted that C.K. “had a fever to 100.4, 3 weeks ago but no other recent illness.”

Id. at 29. A subsequent note from January 3, 2019, states that Petitioners “noted bruising

[on the] day prior to admission” – on January 1, 2019. Id. at 39. C.K. was assessed with

ITP and discharged on January 3, 2019. Ex. 2 at 37-38, 42, 49, 56-57.

2

On January 4, 2019, Petitioners brought C.K. back to her pediatrician for ongoing

complaints of bruises, bleeding from her mouth, crankiness, inability to sleep, and poor

appetite. Ex. 1 at 15. The pediatrician noted the “onset” as “3-7 days[,]” thus around late

December 2018 – early January 2019. See id.

During a hematology follow-up visit on February 5, 2019, C.K.’s treater’s

assessment noted that C.K. had “severe isolated thrombocytopenia since 1/2/19

[consistent with] acute ITP[.]” See Ex. 1 at 101; see also id. at 96 (a note from February

26, 2019, reiterating the same note regarding onset on January 2, 2019); id. at 92

(carrying this notation over into C.K.’s follow-up visit on March 19, 2019); id. at 88

(repeating the note again on April 16, 2019). Finally, during a hematology visit on

September 24, 2019 (wherein her recent treatment with IVIG was discussed), C.K.’s

treater noted that she “[i]nitially began with symptoms in 12/2018[.]” Ex. 13 at 2.

In order to qualify for a Table presumption of causation for ITP for an MMR vaccine,

a petitioner must establish that onset occurs between seven and thirty days after

vaccination. 42 C.F.R. Section 100.3(V)(A). The Qualifications and Aids to Interpretation

(“QAI”) criteria for thrombocytopenic purpura require clinical manifestations such as

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Section 100.3(c)(7). The QAI also specifies that an intervening viral infection between the

MMR vaccine and onset is an exclusionary criterion. Id.

As articulated in my Order to Show Cause and confirmed above, the

contemporaneous medical records do not provide support for an onset of ITP within the

defined Table period. The Petitioners appear to accept this finding, but request the

opportunity to obtain expert report for the claim that ITP onset could begin 47 days, or

several months post vaccination. ECF No. 47 at 2. The case will accordingly be

transferred to permit them that opportunity.

Conclusion

Petitioners cannot proceed with a Table ITP claim in this matter, and therefore any

such claim is hereby DISMISSED. Petitioners’ non-Table and/or significant aggravation

claim, however, may proceed – although this will occur outside of SPU.

Pursuant to Vaccine Rule 3(d), the above-captioned case is hereby

transferred out of SPU and reassigned randomly to a Special Master by the Clerk’s

Office. Further proceedings will be determined by the assigned Special Master.

3

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

4

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.

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