TOWPIK v. SECRETARY OF HEALTH AND HUMAN SERVICES
Case No. 15-1213V.
TADEK TOWPIK and RENATA TOWPIK parents of A.T., a minor, Petitioners, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
United States Court of Federal Claims.
June 27, 2016.
TADEK TOWPIK, Petitioner, represented by Edward M. Kraus, Law Offices of Chicago Kent.
RENATA TOWPIK, Petitioner, represented by Edward M. Kraus, Law Offices of Chicago Kent.
A.T.,, Petitioner, represented by Edward M. Kraus, Law Offices of Chicago Kent.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent, represented by Amy Paula Kokot, U.S. Department of Justice.
RULING ON ENTITLEMENT1
THOMAS L. GOWEN, Special Master.
On October 16, 2015, Tadek and Renata Towpik (“petitioners”) filed a petition on behalf of their minor son, A.T., for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10-34 (2012)2(the “Vaccine Act” or “the Program”). Petitioners alleged that as a result of receiving a measles-mumps-rubella (“MMR”) vaccine on March 26, 2013, A.T. suffered an episode of acute disseminated encephalomyelitis (“ADEM”) and resulting developmental delays. Petition at Preamble. Between November 17, 2015, and February 22, 2016, petitioners filed medical records, and on April 20, 2016, petitioners submitted an expert report from Marcel Kinsbourne, MD.
On June 17, 2016, respondent filed her Rule 4(c) report, stating that the Division of Injury Compensation Programs has reviewed the petition and medical records filed in this case, and has concluded that petitioners are entitled to a presumption of causation because the medical records establish that A.T. suffered an encephalopathy meeting the criteria of the Vaccine Injury Table, 42 C.F.R. § 100.3. Resp. Report at 5. “Specifically, A.T.’s encephalopathy manifested between five and fifteen days after his receipt of the MMR vaccination, and there is not preponderant evidence that his condition was due to a factor unrelated to the vaccine.”
Special masters may determine whether a petitioner is entitled to compensation based on the record. A hearing is not required. 42 U.S.C. § 300aa-13; Vaccine Rule 8(d). Based upon respondent’s recommendation in favor of compensation and a review of the record as a whole, the undersigned finds that petitioners have established that they are entitled to compensation based on a Table encephalopathy. 42 C.F.R. 100.3(a)(III)(B). A separate damages order will issue.