Mims v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-596V
Filed: June 30, 2016
Unpublished
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LEAH MIMS, as mother and natural *
guardian of minor, J.M., and *
DONELLE MIMS, as father and natural *
guardian of minor, J.M. *
* Ruling on Entitlement; Concession;
v. * Measles, Mumps, Rubella, Varicella
Petitioners, * (“MMRV”) Vaccination; Table Injury;
* Anaphylaxis; Anaphylactic Shock;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Jeffrey S. Pop, Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On May 19, 2016, Leah Mims and Donelle Mims (“petitioners”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.,2 (the “Vaccine Act” or “Program”). Petitioners “request
compensation for the death of their minor son J.M., who received Measles-Mumps-
Rubella, Varicella, and Influenza vaccinations on October 19, 2015.” Petition at 1
(citations omitted). Petitioners allege “[w]ithin minutes of administration of the above
stated vaccinations, J.M. suffered from an anaphylactic shock and shortly thereafter
passed away.” Id. Claiming J.M. suffered an injury listed on the Vaccine Injury Table
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
within the time frame specified, petitioners assert a “Table injury” claim. Id. at 1, ¶ 17;
see 42 C.F.R. § 100.3(a)(III)(A) (2015) (listing the Table injury of anaphylaxis or
anaphylactic shock within four hours of receiving any component of the measles,
mumps, and rubella vaccine). In the alternative, petitioners allege J.M. suffered an
injury which was caused-in-fact by the measles, mumps, rubella, varicella (“MMRV”)
and/or influenza vaccinations he received. Petition at 1, ¶ 18. Petitioners further allege
neither they nor any other party has ever filed a lawsuit or received compensation for
the vaccine related death of their son. Id. at ¶¶ 19-20. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On June 29, 2016, respondent filed her Rule 4(c) report in which she concedes
that petitioners are entitled to compensation in this case. Respondent’s Rule 4(c)
Report3 at 1-2. Specifically, respondent “concludes that JM’s anaphylaxis resulting in
his death meets the Table requirements for the presumptive injury of anaphylaxis, and
that compensation should be awarded for his death occurring minutes after
vaccination.” Id. at 5. Respondent further indicates that “petitioners have satisfied all
legal prerequisites for compensation under the Act.” Id.
In view of respondent’s concession and the evidence before me, I find that
petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Respondent filed the Rule 4(c) Report in conjunction with a Proffer, titling the document “VACCINE
RULE 4(c) REPORT AND PROFFER ON DAMAGES.”
2