SHAW v. SECRETARY OF HEALTH AND HUMAN SERVICES

In Shaw, the petitioner, an active and healthy 40 year-old male, suffered small fiber neuropathy after receipt of a hepatitis B vaccine.  Tried and lost by a prior attorney, Attorney Chin-Caplan obtained a remand from the Claims Court based upon newly discovered evidence that addressed the denial of the underlying claim by the special master. 

On rehearing, the respondent disputed the special master’s finding that petitioner suffered from small fiber neuropathy, disputed the theory propounded by petitioner on how the hepatitis B vaccine could cause small fiber neuropathy, and challenged the diagnosis of petitioner’s treating physicians by disputing the significance of the test findings utilized by his physicians.  The respondent further asserted that the lack of an antibody response indicated that an immune mediated reaction could not have occurred thereby casting doubt on petitioner’s theory on how hepatitis B vaccine could cause small fiber neuropathy. 

After re-establishing the validity of the special master’s earlier findings and the logical sequence of cause and effect that the special master found lacking in the first hearing, respondent’s expert, under cross-examination by Attorney Chin-Caplan, conceded that an earlier subclass of antibodies could have caused the immune mediated reaction that formed the basis of petitioner’s theory and acknowledged that testing for the presence of the specific subclass of antibodies was never obtained.  Shaw is one of a handful of cases granted entitlement for small fiber neuropathy in the Vaccine Program.   

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