Bello v. Secretary of Health and Human Services
20-739
| Fed. Cl. | Nov 2, 2021Background
- Petition filed June 22, 2020 by parents of C.J.B., alleging encephalopathy and speech/language regression caused by vaccines given June 23, 2017 (15‑month visit).
- Contemporaneous pediatric records at vaccination visit show developmentally appropriate motor and communication skills (3–6 words); no immediate adverse reaction documented.
- Parents later reported speech loss within days/hours; earliest medical documentation of parental concern appears ~40 days after vaccination and more clearly by late August/early September 2017.
- ED and specialty evaluations (CHOP, genetic testing, MRI, EEG) in 2017–2018 found no evidence of encephalopathy, seizures, or a genetic cause; toxicology for metal poisoning was uninformative.
- A pediatric neurologist (Dr. Falchek) later (2019–2020) described a "complex encephalopathy" but relied on parental history and post‑hoc interpretation; MRIs and earlier exams were largely normal.
- Chief Special Master Corcoran dismissed the claim without hearing, concluding petitioners failed to prove by preponderant evidence that C.J.B. experienced the kind of encephalopathy necessary to link vaccination to his regression; aluminum‑toxicity/ASIA theories rejected as unsupported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did C.J.B. suffer an encephalopathy after vaccination? | Parents: temporal change in behavior and loss of speech after June 2017 vaccinations shows encephalopathy. | Govt: contemporaneous records lack any acute neurologic signs (e.g., altered consciousness, seizures); reports are inconsistent and delayed. | Held: No — record does not preponderantly show encephalopathy in a medically acceptable timeframe. |
| Is the temporal relationship between vaccination and onset medically acceptable? | Parents: onset was within hours/days per their account; later medical notes corroborate regression after vaccination. | Govt: onset reporting varies; earliest medical concerns appear weeks later; no acute post‑vaccine neurologic event documented. | Held: Timing not established as medically acceptable for encephalopathy causation. |
| Can later treating opinions (e.g., Dr. Falchek) substitute for lack of contemporaneous evidence? | Parents: later neurologist supports encephalopathy diagnosis and link to immunizations. | Govt: later opinions rely on parental history and are not supported by contemporaneous objective findings. | Held: Later opinions insufficient to overcome lack of contemporaneous evidence; treating opinions weighed but not controlling. |
| Should the case proceed to hearing / expert development? | Parents: opportunity to develop expert proof could substantiate causation. | Govt: Experts would be unnecessary given absence of foundational contemporaneous evidence; proceeding wastes resources. | Held: No hearing; dismissal on the papers was reasonable and resource‑appropriate. |
Key Cases Cited
- Althen v. Sec'y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005) (sets three‑prong test for causation in non‑Table vaccine claims)
- Moberly v. Sec'y of Health & Hum. Servs., 592 F.3d 1315 (Fed. Cir. 2010) (preponderance standard and causation principles in Vaccine Program)
- Andreu v. Sec'y of Health & Hum. Servs., 569 F.3d 1367 (Fed. Cir. 2009) (evidence types for Althen prong one; treating physician evidence not dispositive)
- Boatmon v. Sec'y of Health & Hum. Servs., 941 F.3d 1351 (Fed. Cir. 2019) (clarifies preponderance requirement for Althen prong one)
- Cucuras v. Sec'y of Health & Hum. Servs., 993 F.2d 1525 (Fed. Cir. 1993) (contemporaneous medical records carry significant evidentiary weight)
- Kirby v. Sec'y of Health & Hum. Servs., 997 F.3d 1378 (Fed. Cir. 2021) (medical records are important but not automatically presumed accurate)