Demore v. Secretary of Health and Human Services
20-1265V
Fed. Cl.Mar 20, 2025Background
- Christopher Demore, a 67-year-old chef, received a flu vaccine on October 2, 2018, and subsequently developed diplopia and later myasthenia gravis.
- Demore filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging the vaccine caused his neurological condition.
- Both parties’ experts agreed on the medical diagnosis but disagreed on causation.
- After briefing and submission of medical records, the Special Master denied compensation, finding insufficient persuasive evidence of causation by the vaccine.
- Demore sought review in the Court of Federal Claims, arguing that the Special Master used the wrong legal standard for causation.
- The Court affirmed the Special Master's decision, holding the correct "preponderance of the evidence" standard was applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of Proof for Causation | Demore argued only "plausibility" is required for the first prong of causation (Althen), not preponderance. | Respondent asserted the law requires "preponderance of the evidence" for all prongs, not mere plausibility. | Court held that "preponderance of the evidence" is required, and plausibility alone is insufficient. |
| Application of Legal Standard by Special Master | Demore claimed the Special Master imposed a higher burden or misunderstood Althen's standard. | Respondent contended that the Special Master applied the correct legal standard. | Court found the Special Master correctly applied the preponderance standard and did not err. |
| Determination Without Hearing | Demore argued a hearing should have been held. | Respondent stated that a written record sufficed and hearings are discretionary. | Court ruled that a hearing was not required; no abuse of discretion occurred. |
| Waiver of Arguments Not Raised Below | Demore raised the burden of proof argument for the first time on review. | Respondent argued this argument was waived. | Court agreed that new arguments not raised below are generally waived. |
Key Cases Cited
- Markovich v. Sec’y of Health & Hum. Servs., 477 F.3d 1353 (Fed. Cir. 2007) (standard of review for Special Master’s vaccine case decisions is arbitrary, capricious, or an abuse of discretion)
- Rodriguez v. Sec’y of Health & Hum. Servs., 632 F.3d 1381 (Fed. Cir. 2011) (deferential review of Special Master's fact findings if plausible)
- Munn v. Sec’y of Health & Hum. Servs., 970 F.2d 863 (Fed. Cir. 1992) (fact-finding is the domain of the special master in Vaccine Act cases)
- Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274 (Fed. Cir. 2005) (sets out the three-prong test for causation under the Vaccine Act)
- Hodges v. Sec’y of Dep’t of Health & Hum. Servs., 9 F.3d 958 (Fed. Cir. 1993) (affirming that preponderance, not plausibility, is the standard under the Vaccine Act)
- Grant v. Sec’y of Dep’t of Health & Hum. Servs., 956 F.2d 1144 (Fed. Cir. 1992) (distinguishing between table and non-table claims under the Vaccine Act)
- Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339 (Fed. Cir. 2010) (review of special master's evaluation of evidence is highly deferential)