In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 16-435V

*************************
                                   *
JASON GUIDO, parent and            *
natural guardian of D.G., a minor, *
                                   *                                       Filed: August 25, 2017
                      Petitioner,  *
                                   *
               v.                  *                                       Ruling Denying Respondent’s
                                   *                                       Motion to Dismiss
SECRETARY OF HEALTH AND            *
HUMAN SERVICES,                    *
                                   *
                      Respondent.  *
                                   *
*************************


                 RULING DENYING RESPONDENT’S MOTION TO DISMISS

HASTINGS, Special Master.

        This is an action in which Jason Guido (“Petitioner”) requests compensation under the
National Vaccine Injury Compensation Program (hereinafter “the Program” 1), on behalf of his
minor son, D.G., for injuries allegedly suffered from the diphtheria-tetanus-acellular pertussis
(DTaP) and meningococcal vaccinations he received. Petitioner alleged that D.G. suffered from
immune thrombocytopenic purpura that was “caused-in-fact” by the above-stated vaccinations.
After careful consideration, I hereby deny Respondent’s Motion to Dismiss, for the reasons set
forth below.


                                                            I
                                         FACTUAL BACKGROUND

        D.G. was born on July 18, 2001. (Petition at ¶1.) D.G. received the DTaP and
meningococcal vaccinations on January 2, 2014. (See Ex. 3.) According to the Petition,
approximately 14 days after receiving these vaccinations, D.G developed symptoms such as
bumpy red rashes, bleeding gums, and bruising. (Petition at ¶ 4.) On March 12, 2014, D.G.
visited MedExpress to complain of a sore throat, rash, and ecchymosis. (See Ex. 4.)

1
          The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa-10 et seq. (2012
ed.). Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C. (2012 ed.). I will also sometimes refer
to the statutory provisions defining the program as the “Vaccine Act.”
                                                            1
        On that same day, D.G. was diagnosed with acute ITP 2 at the Emergency Department of
Children’s Hospital of Pittsburgh (“Children’s Hospital”), after laboratory tests revealed his very
low platelet count. (Ex. 5(a), pp. 30-32.) Immediately following his ITP diagnosis, D.G. was
prescribed Prednisone for one week, which proved to be ineffective. (Ex. 5(a), p. 67.) D.G.
received IVIG therapy on March 27, 2014, at the Children’s Hospital, for which he was
hospitalized overnight and released the next day. (Ex. 5.)
        Subsequently, weekly blood screenings were prescribed for D.G., until June 12, 2014,
followed by less frequent blood tests until September 11, 2014. (See Ex. 7.) D.G was sent home
from school on April 28, 2014, because of a nosebleed that lasted for about five minutes. (Ex. 6,
pp. 55.) Also on that date, D.G. had some erythema to his face, but otherwise denied any other
symptom. (Id.) D.G. “otherwise has been feeling well” (Id.) His platelet count also increased
from 65,000 on April 23, 2014, to a normal platelet count of 307,000 on April 28, 2014. (Id., pp.
56, 58, 69, 81, 89.)


                                                            II
                                       PROCEDURAL HISTORY

       On April 6, 2016, Jason Guido filed a Petition on behalf of his minor son, D.G, under the
Vaccine Act. 42 U.S.C. §§ 300aa-1 to 300aa-34. (ECF No. 1.) Petitioner alleged that D.G.
developed ITP as a result of his DTaP and meningococcal vaccinations of January 2, 2014. I was
assigned this case on April 7, 2016. (ECF No. 4.)
        On June 1, 2016, Petitioner filed medical records (ECF No. 8), followed by a Statement
of Completion on June 2, 2016. (ECF No. 9.) On October 3, 2016, Respondent file her Rule 4(c)
report, claiming that compensation under the Vaccine Act is not appropriate in this case. (ECF
No. 13.)
       On December 2, 2016, Petitioner filed a Reply Memorandum to Respondent’s Report (ECF
No.18), accompanied by an amended exhibit list containing more of D.G.’s medical records (ECF
No. 16). On January 23, 2017, Respondent filed a Response to Petitioner’s Reply, and moved to
dismiss the case, on the ground that D.G. did not experience symptoms of the alleged vaccine-
caused ITP for more than six months (ECF No. 22.) On March 31, 2017, Petitioner filed a
Response to Respondent’s response (ECF No. 28), along with affidavits from witnesses and a piece
of medical literature (ECF No. 27).


                                                      III
    LEGAL BASIS OF RESPONDENT’S MOTION TO DISMISS-- THE “RESIDUAL
              EFFECTS” ISSUE (“SIX-MONTH REQUIREMENT”)

The Vaccine Injury Act requires a petitioner to demonstrate, by a preponderance of the
evidence,that the vaccinee: “sustained an illness, disability injury or condition caused by a
vaccine” and “(i) suffered the residual effects or complications of such illness, disability, injury,

2
        ITP is the abbreviation for “idiopathic thrombocytopenic purpura”. Dorland’s Illustrated Medical
Dictionary (32nd ed., 2012), p. 1557.
                                                       2
or condition for more than 6 months after the administration of the vaccine; or (ii) that the
vaccinee had died from the injury; or (iii) that the vaccine injury necessitated inpatient
hospitalization and surgery.” See 42 U.S.C. § 300aa–11(c)(1)(D)(i) (emphasis added).
        The U.S. Court of Appeals for the Federal Circuit has observed that:
        Congress included the six month petition requirement ‘to limit the availability of
        the compensation system to those individuals who are seriously injured from
        taking a vaccine.’ H.R. Rep. No. 100-391 (I), at 699 (1987), reprinted in 1987
        U.S.C.C.A.N. 2313–1, –373. Thus, this provision, along with the other petition
        requirements, is intended to restrict eligibility to the compensation program.
Cloer v. HHS, 654 F.3d 1322, 1335 (Fed.Cir. 2011) (en banc), aff'd, 133 S.Ct. 1886 (2013).

                                                      IV
                         ANALYSIS OF “RESIDUAL EFFECTS” ISSUE
        Since D.G. is currently alive and his ITP did not require surgical intervention 3, to be
eligible for compensation pursuant to the “residual effects” statutory requirement, D.G. must
have suffered residual effects of his ITP on or after July 3, 2014, more than six months after
D.G’s vaccinations of January 2, 2014. Only the symptoms manifested due to the vaccine-
related injury are the “residual effects” of that injury. Parsley v. HHS, No. 08–78v, 2011 WL
2463539, at *16 (Fed.Cl. May 27, 2011) (defining “residual effect,” according to medical
definition, as “something left behind or resulting from an illness, disability, injury or condition”).
        Respondent argues that, based upon the record of this case, it is clear that D.G. did not
suffer “residual effects” of his ITP more than six months after receiving his DTaP and
meningococcal vaccinations. I cannot agree.
        To be sure, as Respondent argues, after April 28, 2014, D.G. continued his prescribed
blood screenings until September 17, 2014, and each of the lab results for blood screening from
May 4, 2014, onwards, showed a normal platelet count. (Ex. 6, pp. 2-3, 43-51.) Further, D.G.’s
medical records also do not indicate that he received additional treatment of his ITP after April
28, 2014. Having a normal platelet count and receiving no treatment in the summer of 2014
would indeed support the argument that D.G. did not suffer residual effects of his ITP for more
than six months after receiving the vaccinations, just as the situation was with the Crabbe case.
        In a case somewhat similar to the matter under consideration here, Crabbe v. HHS, No.
10-762V, 2011 WL 4436724, at *4 (Fed. Cl. Aug. 26, 2011), a 14-month-old child was also
diagnosed with ITP, 17 days after receiving the MMR vaccine. Special Master Vowell
dismissed the case because the injured child “did not suffer ‘residual effects’ of ITP after his
platelet counts normalized, and he was no longer taking any drugs to correct his platelet count.”
(Id.) That special master noted that symptoms of a rash or petechiae, accompanied by a low
platelet count, would demonstrate a return of his ITP, but the injured child in Crabbe never
demonstrated either.



3
        D.G. was hospitalized on March 27, 2014, for his IVIG treatment, and was released the next day on March
28, 2014. (Ex. 5.) Apparently, no “surgery” was performed. (Id.)
                                                       3
        In this regard, I agree with Special Master Vowell that the mere testing for a possible
recurrence of D.G’s ITP, via the regular blood screenings for his platelet count, does not qualify
as a “residual effect” within the meaning of the statute. Legislative history describes that the six-
month provision requires a vaccinee to “suffer ongoing disabilities,” suggesting that the
committee viewed a “residual effect” as more concrete than just an increased risk of re-
occurrence of the injury. See H.R. Rep. No. 100-391 (I), at 699 (1987), reprinted in 1987
U.S.C.C.A.N. 2313–1, –373.
       However, the Children’s Hospital medical records from D.G.’s follow-up visit on
September 17, 2014 suggest that D.G. did continue to experience lesser ITP symptoms, such as
being “slow to heal after cuts,” “bleeding or bruising easily,” and having “nose bleeds” and
bleeding gums” since his last visit. (Ex. 5(b), p. 98 of 103.)
         Further, Heather Guido, D.G.’s mother, Jamie Guido, D.G.’s stepmother, and Valeria
Storar, D.G.’s hockey team manager, all contended in their respective affidavits that D.G.
struggled with fatigue. (Ex. 8 at ¶ 2; Ex. 9 at ¶ 3; Ex. 10 at ¶ 2.) Petitioner has filed a medical
article indicating that fatigue can be a symptom of ITP. (Ex. 12.)
       In addition, Valerie Storar stated that “through the summer months of June, July and
August 2014, [she] observed several bruises and cuts on [D.G.’s] body that were not typical in
appearance were very slow to heal.” (Ex. 10 at ¶ 2.) And the months of July and August
occurred more than six months after D.G.’s vaccinations on January 2, 2014.
        In conclusion, for the reasons set forth above, based on the overall record of this case as it
currently stands, I conclude that D.G. did, more probably than not, suffer some residual effects of
his ITP for more than six months following the vaccinations of January 2, 2014. These effects
were D.G.’s ongoing fatigue, slowness in healing from cuts, frequent bruising, nosebleeds, and
bleeding gums. Thus, Respondent’s pending Motion to Dismiss is hereby denied at this time.


                                                  V
                                  FURTHER PROCEEDINGS
         The parties shall consult each other to determine if this case can be settled, and Petitioner
shall file a status report addressing that topic in 60 days. If settlement fails, the next step would
likely be for Petitioner to obtain an expert report addressing the “causation” issue.


       IT IS SO ORDERED.

                                                              /s/ George L. Hastings, Jr.
                                                              George L. Hastings, Jr.
                                                              Special Master




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