Domke v. Secretary of Health and Human Services
16-307
| Fed. Cl. | Jul 24, 2017Background
- Petitioner Heidi Domke filed a Vaccine Act petition alleging an immediate anaphylactic reaction and brachial neuritis after a March 13, 2013 Tdap vaccination, and alternative immune-mediated arm/shoulder symptoms.
- Case assigned to the Special Processing Unit March 9, 2016; respondent filed a Rule 4(c) report recommending against compensation because records did not support anaphylaxis or brachial neuritis.
- Special Master ordered an expert report; petitioner requested multiple extensions but ultimately her retained immunology experts could not provide a causation report.
- Medical records: allergy testing negative (including Tdap); EMGs (June 2013, Feb 2015) and neurologic exam showed no brachial neuritis or other neurologic pathology; no records showing an adverse reaction lasting >6 months.
- Petitioner orally moved to dismiss after conceding inability to meet burden of proof; Special Master granted dismissal for failure to prove a Table injury or causation-in-fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner proved an on-Table anaphylaxis | Tdap caused immediate anaphylaxis within 45 minutes | Medical records do not show anaphylaxis; testing negative | Dismissed — records do not support anaphylaxis |
| Whether petitioner proved on-Table brachial neuritis | Tdap caused brachial neuritis | EMG and neurologic exams normal; no evidence of brachial neuritis | Dismissed — no objective neurologic evidence |
| Whether petitioner proved causation-in-fact for alleged immune-mediated injury | Tdap triggered subsequent immune-mediated arm/shoulder symptoms | No expert report/theory linking vaccine to symptoms; no temporal and medical support | Dismissed — petitioner failed Althen prongs and submitted no expert report |
| Whether dismissal proper without expert report | Petitioner could rely on records and assertions | Vaccine Act forbids relief based solely on unsupported allegations; expert evidence required for causation | Dismissed — petitioner conceded inability to meet burden; Special Master entered judgment |
Key Cases Cited
- Althen v. Secretary of Health and Human Services, 418 F.3d 1274 (Fed. Cir.) (sets three-pronged test for causation-in-fact under the Vaccine Act)
- Grant v. Secretary of Health and Human Services, 956 F.2d 1144 (Fed. Cir.) (explains that absence of other causes does not satisfy affirmative duty to prove causation)
- Shyface v. Secretary of Health and Human Services, 165 F.3d 1344 (Fed. Cir.) (plaintiff must show vaccination was a substantial factor in causing injury)