Marino v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0622V
Filed: April 18, 2017
Unpublished
****************************
DEBORAH MARINO, *
*
Petitioner, * Ruling on Entitlement (Non-Table); Fact
v. * Hearing; Findings of Fact; Influenza
* (“Flu”) Vaccine; Shoulder Injury Related
SECRETARY OF HEALTH * to Vaccine Administration (“SIRVA”);
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
****************************
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Amy P. Kokot, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT 1
Dorsey, Chief Special Master:
On May 25, 2016, Deborah Marino (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq., 2 (the “Vaccine Act”). Petitioner alleges that she suffered right shoulder injuries as
a result of receiving the influenza (“flu”) vaccine on September 25, 2014. Petition at 1-4.
The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters.
I. Summary of Procedural History
On July 7, 2016, the staff attorney assigned to manage this case on behalf of the
undersigned held the initial telephonic status conference. Paul Brazil appeared for
petitioner. Amy Kokot appeared for respondent. At the conference, respondent asked
that petitioner file additional medical records, if available, to corroborate her assertions
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to
identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
regarding onset and course. Respondent also requested any available medical records
from three years prior to vaccination. Petitioner’s counsel stated his belief that all
available records had been obtained and filed; however, he agreed to follow up with
petitioner on the matter. See Sched. Order, issued July 8, 2016 (ECF No. 8).
On August 11, 2016, petitioner filed additional medical records and a second
statement of completion. 3 Thereafter, respondent was ordered to file a status report
regarding his litigative position. See Sched. Order, issued Aug. 17, 2016 (ECF No. 11).
On September 19, 2016, respondent reported that he was not interested in settlement
and wished instead to file a Rule 4(c) Report contesting entitlement. (ECF No. 12).
Respondent filed his Rule 4(c) Report on October 28, 2016. In respondent’s
view, petitioner had failed to provide any “reliable evidence to demonstrate that her flu
vaccination on September 25, 2014, caused her right shoulder injury.” Rule 4(c)
Report, filed Oct. 28, 2016 (ECF No 14), at 6.
On November 4, 2016, the staff attorney convened a status conference to
discuss possible next steps. The parties agreed that a fact hearing would be helpful
since respondent’s opposition centered on the onset of petitioner’s symptoms and her
seven-month delay in seeking treatment. 4 A fact hearing would afford petitioner an
opportunity to describe in detail the circumstances of her vaccination, the onset of her
symptoms, the nature of her injury, and the reasons for her delay in seeking treatment.
See Sched. Order, issued Nov. 4, 2016 (ECF No. 15).
Based on the parties’ input, the undersigned scheduled a fact hearing for March
2, 2017, in Washington, D.C. See Pre-Hearing Order, issued Dec. 16, 2016 (ECF No.
19). Petitioner filed a witness list and corresponding affidavits on February 16, 2017.
(ECF No. 22). Respondent did not plan to call any witnesses.
II. Fact Hearing
The undersigned held the fact hearing as planned, with petitioner and two other
lay witnesses testifying via videoconference. 5 At the conclusion of the proceeding, the
undersigned informed the parties that she intended to issue a ruling from the bench.
See Hearing Transcript (“Tr.”), filed Mar. 16, 2017 (ECF No. 25), at 56. Both parties
agreed to this proposed action. Id.
After a short recess, the undersigned returned and read her ruling into the
record. Tr. at 57-62. The undersigned stated that there were two issues to be resolved:
(1) the onset of petitioner’s symptoms, and (2) whether petitioner sustained a shoulder
3 Pet’r’s Ex. 6.
4 During the conference, petitioner’s counsel suggested that the parties attempt to negotiate, perhaps on
the basis of litigative risk. Respondent’s counsel agreed to speak with her client about the possibility.
See Sched. Order, issued Nov. 4, 2016 (ECF No. 15). On November 18, 2016, respondent filed a status
report declining the opportunity to discuss a settlement. (ECF No. 16).
5 A third witness was planned, but unable to attend. The undersigned accepted her submitted affidavit in
lieu of her testimony. Tr. at 57; see Pet’r’s Ex. B, attachment to Witness List (ECF No.22-2).
2
injury related to vaccine administration (“SIRVA”). With regard to the onset of
symptoms, the undersigned found that petitioner experienced pain “immediately after
the flu vaccine was administered.” Tr. at 60. With regard to whether petitioner suffered
a SIRVA, the undersigned found that petitioner fulfilled all of the criteria for that injury. 6
Tr. at 60-61.
Having resolved the pertinent factual issues, the undersigned then found that
petitioner had met her burden of proving causation-in-fact under Althen v. HHS, 418
F.3d 1274 (Fed. Cir. 2005). Tr. at 61.
III. Conclusion
On March 20, 2017, the undersigned afforded the parties 14 days in which to file,
or request to file, additional relevant evidence in this matter. See Order, issued Mar. 20,
2017 (ECF No. 26). The order advised the parties that after 14 days, the evidence in
this matter would be closed and a ruling on entitlement would issue. No additional
evidence, or request to file evidence, was submitted.
In view of the submitted evidence, including the medical records, credible
witness testimony, and findings of fact, the undersigned finds petitioner entitled
to Vaccine Act compensation.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
6 Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed on the Vaccine Injury
Table (“Table”). See National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury
Table, Final Rule, 82 Fed. Reg. 6294, Jan. 19, 2017; National Vaccine Injury Compensation Program:
Revisions to the Vaccine Injury Table, Delay of Effective Date, 82 Fed. Reg. 11321, Feb. 22, 2017
(delaying the effective date of the final rule until March 21, 2017). Although petitioner’s claim was filed
before SIRVA was added to the Table, and thus cannot be found to be a SIRVA Table injury, the
undersigned’s findings were informed by the criteria used to evaluate such claims. The criteria are as
follows:
A vaccine recipient shall be considered to have suffered SIRVA if such recipient
manifests all of the following: (i) No history of pain, inflammation or dysfunction of the
affected shoulder prior to intramuscular vaccine administration that would explain the
alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after
vaccine injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and reduced
range of motion are limited to the shoulder in which the intramuscular vaccine was
administered; and (iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial
neuritis, mononeuropathies, or any other neuropathy).
82 Fed. Reg. 6303 (Qualifications and Aids to Interpretation for SIRVA); see also National
Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 80 Fed. Reg.
45132, Notice of Proposed Rulemaking, July 29, 2015 (citing Atanasoff S, Ryan T, Lightfoot R,
and Johann-Liang R, 2010, Shoulder injury related to vaccine administration (SIRVA), Vaccine
28(51):8049-8052).
3