Smith v. Secretary of Health and Human Services
14-982
| Fed. Cl. | Jul 10, 2017Background
- Petitioner Tesha Smith filed a Vaccine Act claim alleging the influenza vaccine she received through her employer in February 2012 caused Guillain-Barré syndrome (GBS). Petition filed Oct. 14, 2014.
- Smith was hospitalized in April 2012 with progressive weakness that culminated in paralysis and an extended stay at Tallahassee Memorial Hospital; she was later diagnosed with GBS.
- No contemporaneous medical record or vaccination card documenting the February 2012 flu shot was located; the employer nurse who administered shots retired and could not be located.
- Petitioner submitted a sworn affidavit, an affidavit from a coworker (Fallon Steadman), unsworn family statements, employer correspondence showing vaccinations were offered and a vaccine lot number, pay records, and a medical-leave request.
- Respondent moved for a ruling on the record or dismissal for lack of proof of vaccination; Special Master Corcoran allowed supplementation and then reviewed the circumstantial evidence.
- The Special Master found that, on the whole, there was preponderant circumstantial evidence that Smith received a flu vaccination in February 2012, but made no finding on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner proved receipt of the influenza vaccine in Feb. 2012 | Smith: sworn affidavit, coworker affidavit, employer emails/lot number, witness statements and contextual evidence show she more likely than not received the shot | HHS: no contemporaneous provider record or direct proof; therefore proof is insufficient | Held: Preponderance met — circumstantial evidence and corroborating affidavits suffice to prove vaccination occurred in Feb. 2012 |
| Whether circumstantial and lay testimony can substitute for contemporaneous documentation of vaccination | Smith: Vaccine Rule 2 affidavits and witness testimony satisfy the requirement; omissions in medical records explain lack of contemporaneous note (patient incapacitated) | HHS: absence of direct documentary proof weighs against finding vaccination | Held: Circumstantial evidence and credible lay testimony can establish vaccination when contemporaneous records are unavailable; here, evidence barely meets preponderance standard |
Key Cases Cited
- Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315 (Fed. Cir. 2010) (preponderance standard explained)
- Centmehaiey v. Sec'y of Health & Human Servs., 32 Fed. Cl. 612 (Fed. Cl. 1995) (lack of contemporaneous documentation does not necessarily bar recovery)
- Epstein v. Sec'y of Health & Human Servs., 35 Fed. Cl. 467 (Fed. Cl. 1996) (special masters may rely on lay testimony to find vaccination occurred)
- Brown v. Sec'y of Health & Human Servs., 18 Cl. Ct. 834 (Cl. Ct. 1989) (proof of vaccination may be established via testimony and ancillary records when contemporaneous records are absent)