Sally Herms v. Secretary of Health and Human Services

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SALLY HERMS,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2025-1007
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-vv-00070-CFL, Senior Judge Charles F. Lettow.
______________________
Decided: January 15, 2026
______________________
J OHN F RANCIS MCH UGH , New York, NY, for petitioner-
appellant.
ALEC SAXE, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, for respondent-
appellee. Also represented by BRIAN M. BOYNTON, C.
SALVATORE D'ALESSIO , COLLEEN HARTLEY , HEATHER L YNN
P EARLMAN.
______________________
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HERMS v. HHS 2
Before L OURIE, T ARANTO, and CHEN, Circuit Judges.
L OURIE, Circuit Judge.
Sally Herms filed a petition in the Court of Federal
Claims (“the Claims Court”) for compensation under the
National Vaccine Injury Compensation Program (“the
Vaccine Act” or “the Program”), 42 U.S.C. §§ 330aa-10 to
330aa-34. She claimed that the diphtheria tetanus toxoid
acellular pertussis (“DTaP”) vaccination she received
caused sensorineural hearing loss (“SNHL”) and tinnitus
in her left ear. The special master denied her claim, and
the Claims Court affirmed that decision. See Herms v.
Sec’y of Health & Hum. Servs., No. 19-70V,
2024 WL 1340669 (Fed. Cl. Spec. Mstr. Mar. 4, 2024)
(Special Master Decision), aff’d, 173 Fed. Cl. 1 (2024)
(Claims Court Decision); see also J.A. at 666–700; J.A. at
1–19.1 We affirm.
BACKGROUND
Herms received the DTaP vaccine on June 18, 2017.
Special Master Decision, 2024 WL 1340669, at *1. Two
days later, she experienced fever, muscle aches, and a
“feeling of being in a tunnel.” Id.; J.A. 43, 46. She awoke
and found that she was deaf in her left ear. Special Master
Decision, 2024 WL 1340669, at *1. The next morning, she
had tinnitus in her left ear. Id.
In January 2019, Herms filed her petition for
compensation under the Vaccine Act. Id. She alleged that
the DTaP vaccine caused SNHL and tinnitus in her left ear.
See id. The case was assigned to a special master. Before
the special master, the parties did not dispute the
diagnoses, but rather causation––i.e., whether the DTaP
vaccine caused her injuries. Id.
1 J.A. refers to the Joint Appendix, ECF 24.
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HERMS v. HHS 3
In making her decision, the special master considered
evidence from Herms’ treating physicians, id. at 24, two
experts for Herms, id. at 19–21, and one expert for the
agency, id. at 20, 24. In particular, the special master
considered a theory from one of Herms’ experts that
molecular mimicry—the process by which materials in the
DTaP vaccine activated the immune system of the inner
ear—caused Herms’ injuries. Id. at 8, 19. Considering the
totality of the evidence, the special master found that
Herms failed to meet her burden to show, by a
preponderance of the evidence, that the DTaP vaccine
caused her SNHL and tinnitus. Id. at 27. She reasoned
that Herms failed to present preponderant evidence of a
sound and reliable causation theory because Herms’
experts provided conclusory opinions and cited
unpersuasive reports. Id. at 18–23. The special master
also reasoned that Herms failed to establish a connection
between the vaccine and her injuries and insufficiently
relied on the temporal proximity between the vaccine and
start of symptoms. Id. at 23–26.
Herms sought review of the special master’s decision in
the Claims Court, which affirmed the decision. Claims
Court Decision, 173 Fed. Cl. at 20. Herms appealed, and
we have jurisdiction under 42 U.S.C. § 300aa-12(f).
D ISCUSSION
The Vaccine Act provides a means for claimants to
petition the government to receive compensation for
vaccine-related injuries or death. LaLonde v. Sec’y of
Health & Hum. Servs., 746 F.3d 1334, 1338 (Fed. Cir.
2014) (citing 42 U.S.C. § 300aa-10(a)). To receive
compensation, a claimant must show causation between a
vaccine and an injury. Id. The Vaccine Act distinguishes
between “Table injuries” and “off-Table injuries.” Cerrone
v. Sec’y of Health & Hum. Servs., 146 F.4th 1113, 1120
(Fed. Cir. 2025). “When a designated condition follows the
administration of a designated vaccine within a designated
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HERMS v. HHS 4
period of time, the injury is referred to as a Table injury,
and causation is presumed.” Id. (citing 42 U.S.C. §§ 300aa-
11(c), 300aa-14). “All other injuries alleged to be caused by
a vaccine are considered off-Table injuries.” Id. The
claimant must prove causation for off-Table injuries by a
preponderance of the evidence. Id; see 42 U.S.C. § 300aa-
13(a)(1)(A)–(B).
Here, Herms alleged an off-Table injury. See Claims
Court Decision, 173 Fed. Cl. at 7; 42 C.F.R. § 100.3 (Vaccine
Injury Table). She was thus required to prove by a
preponderance of the evidence that the DTaP vaccine
caused her SNHL and tinnitus. See Althen v. Sec’y of
Health & Hum. Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005). To do so, she must provide: “(1) a medical theory
causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a
showing of a proximate temporal relationship between
vaccination and injury.” See id.; see also Special Master
Decision, 2024 WL 1340669 at *18 (enumerating the
Althen elements).
“In Vaccine Act cases, we review a ruling by the
[Claims Court] de novo, applying the same standard that it
applies in reviewing the decision of the special master.”
LaLonde, 746 F.3d at 1338–39 (citation omitted). “We
review factual findings under the arbitrary and capricious
standard, and we review legal rulings to determine
whether they are not in accordance with law.” Id. at 1339
(cleaned up). Indeed, it is a “highly deferential standard
with regard to factual matters.” Hodges v. Sec’y of Dep’t of
Health & Hum. Servs., 9 F.3d 958, 960 (Fed. Cir. 1993).
Here, both the special master and the Claims Court
issued well-reasoned, thorough opinions. The special
master considered the opinions of Herms’ experts and
treating physicians, categorizing them by each Althen
prong. Special Master Decision, 2024 WL 1340669 at *7–
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HERMS v. HHS 5
17, 18–27. She ultimately determined that the evidence for
each factor was insufficient and conclusory. Id. at 18–27.
We conclude that the special master’s conclusion that
Herms’ evidence of causation was unpersuasive was not in
error. Indeed, “[t]here is nothing in the case to suggest that
the [s]pecial [m]aster failed to comprehend the value or
effect of the medical evidence.” See Hodges, 9 F.3d at 961;
Special Master Decision, 2024 WL 1340669 at *18–27
(addressing Herms’ evidence in the context of each Althen
prong). And the Claims Court did not err in upholding the
special master’s decision, as it properly analyzed the
decision and determined it had “a rational basis in the
record and properly applied the relevant law.” See Claims
Court Decision, 173 Fed. Cl. at 16–20. On the record before
us, we find nothing arbitrary, capricious, or otherwise not
in accordance with the law. See Hodges, 9 F.3d at 962.
Herms argues that the Claims Court erred by
upholding the special master’s discounting of the opinions
of Herms’ treating physicians and experts, while crediting
the opinion of the agency’s expert. See Open. Br. at 4, 8,
11–15, 16–22. In the same vein, Herms argues that the
Claims Court “insist[ed] on hard proof” of causation and
“significantly increased [her] burden of proof” by rejecting
her molecular mimicry theory. Id. at 7, 11. We disagree.
As stated above, the special master properly engaged with
those arguments, weighed the evidence, and found that the
opinions of Herms’ experts and doctors were unpersuasive.
See Special Master Decision, 2024 WL 1340669 at *19–21.
Herms asks us to reweigh the evidence; but given our
standard of review, we cannot do so. See Hodges, 9 F.3d at
961–62; Porter v. Sec’y of Health & Hum. Servs., 663 F.3d
1242, 1249 (Fed. Cir. 2011) (“We do not reweigh the factual
evidence, assess whether the special master correctly
evaluated the evidence, or examine the probative value of
the evidence or credibility of the witnesses.” (citation
omitted)). The Claims Court “is not to second guess the
[s]pecial [m]aster[’]s fact-intensive conclusions; the
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HERMS v. HHS 6
standard of review is uniquely deferential for what is
essentially a judicial process.” Hodges, 9 F.3d at 961
(citation omitted). And our review is to “remain equally
deferential.” Id. (citations omitted).
CONCLUSION
We have considered Herms’ other arguments but find
them unpersuasive. For the foregoing reasons, we affirm
the final decision of the Claims Court.
AFFIRMED
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