Lozano v. Secretary of Health and Human Services, No. 19-2138 (Fed. Cir. 2020)Annotate this Case
In 2012, Lozano gave birth to a baby. While still hospitalized, Lozano received a tetanus-diphtheria-acellular-pertussis (Tdap) vaccination. Two weeks later, Lozano reported a low-grade fever, body aches, and breast tenderness. Lozano’s symptoms persisted through visits to her physician and the emergency room. She developed abdominal pain, difficulty urinating, weakness, loss of balance, vision changes, neck pain, headache, vomiting, and dizziness. A brain MRI suggested that Lozano possibly had multiple sclerosis (MS), acute disseminated encephalomyelitis (ADEM), or vasculitis. Lozano’s symptoms improved with steroid treatment, following a working diagnosis of MS. After several months, a repeat MRI “showed dramatic improvement, suggesting that ADEM was a more likely etiology, which was confirmed through later serological findings.” Lozano’s doctors opine that ADEM is the likely explanation for her symptoms.
Lozano sought compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa. Lozano’s expert opined that Lozano’s ADEM was the result of her receipt of the Tdap vaccine. The special master granted Lozano’s petition, finding that her expert’s testimony and the supporting medical literature demonstrated that the Tdap vaccine can cause autoimmune diseases such as ADEM and that Lozano offered preponderant evidence of a proximate temporal relationship between the vaccine and her injury. The Claims Court and Federal Circuit upheld the award of a lump-sum payment of $1,199,216.86, finding that the decision was neither an abuse of discretion nor contrary to law and that the fact-findings were neither arbitrary nor capricious.