HENNINGS v. SECRETARY OF HEALTH AND HUMAN SERVICES
1:18-vv-01336
Fed. Cl.Aug 2, 2021Background
- Petitioner Mathew Hennings filed a Vaccine Program claim (petition filed Aug. 31, 2018) alleging an influenza vaccination on or about Oct. 1, 2015 caused polyneuropathy; petition initially filed to preserve the statute of limitations.
- Subpoenas to employer (VFI Corporate Finance) and Intermountain Healthcare and a query to the Utah immunization registry produced no vaccination record; employer and provider responses indicated they did not retain off‑site clinic vaccination records.
- Petitioner submitted a January 24, 2020 affidavit attesting he received the flu shot at work and that numbness began a few weeks after vaccination.
- Contemporaneous medical records from April–May 2016 (primary care and neurology) record symptom onset as “1 year ago” or “more than a year,” suggesting symptoms predated the alleged October 2015 vaccination.
- The special master dismissed entitlement (Apr. 13, 2020) for failure to prove receipt of the vaccine; petitioner then sought attorneys’ fees and costs, contesting reasonable‑basis issues addressed in light of Cottingham and James‑Cornelius.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable basis to assert receipt of the vaccination | Hennings’s sworn affidavit plus employer/provider statements showing clinics were offered; lack of retained records is not petitioner’s fault | No objective corroboration: employer, provider, state registry, and contemporaneous medical records contain no record of vaccination | Denied — affidavit alone was insufficient; objective evidence lacking to establish reasonable basis for receipt of vaccine |
| Reasonable basis that neuropathy onset occurred after vaccination | Hennings: affidavit states symptoms began weeks after vaccine; "1 year ago" entries could mean within the prior calendar year | Medical records from PCP and neurologist indicate symptoms present for ~1+ years as of spring 2016, which predates alleged Oct. 2015 vaccination | Denied — medical records contradict petitioner’s timing; petitioner failed to present sufficient objective evidence that onset followed vaccination |
| Reasonable basis that the vaccine caused the neuropathy | Hennings: would have obtained expert proof if factual predicates were resolved; product labeling lists neuropathy among postmarketing reports | No treating‑physician or expert opinion linking vaccine to injury; postmarketing listing and hypothetical expert testimony do not provide objective proof | Denied as to fees — dispositive failures on vaccination receipt and post‑vaccination onset render causation analysis moot; overall no reasonable basis |
Key Cases Cited
- Cottingham v. Secretary of Health & Human Services, 971 F.3d 1337 (Fed. Cir. 2020) (articulates reasonable‑basis evidentiary guidance; medical records counted as objective evidence)
- James‑Cornelius v. Secretary of Health & Human Services, 984 F.3d 1374 (Fed. Cir. 2021) (affidavits and sworn testimony about personal‑knowledge facts—e.g., receipt/timing of vaccination—can constitute objective evidence for reasonable basis)
- Simmons v. Secretary of Health & Human Services, 875 F.3d 632 (Fed. Cir. 2017) (good faith and reasonable basis are separate; reasonable basis requires objective support)
- Locane v. Secretary of Health & Human Services, 685 F.3d 1375 (Fed. Cir. 2012) (if an injury predates vaccination, the vaccine cannot be the cause)
- Chuisano v. Secretary of Health & Human Services, 116 Fed. Cl. 276 (Fed. Cl. 2014) (reasonable‑basis standard is lower than preponderance but temporal proximity alone is insufficient)
- McKellar v. Secretary of Health & Human Services, 101 Fed. Cl. 297 (Fed. Cl. 2011) (petitioner bears the burden to demonstrate reasonable basis)