Geller v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1355V
Filed: May 29, 2019
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HERBERT GELLER, * UNPUBLISHED
*
Petitioner, *
*
v. * Ruling on Entitlement;
* Influenza (“Flu”) Vaccine;
SECRETARY OF HEALTH * Brachial Neuritis
AND HUMAN SERVICES, *
*
Respondent. *
*
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Leah Durant, Esq., Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.
Claudia Gangi, Esq., U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Roth, Special Master:
On September 27, 2017, Herbert Geller (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program (“the Program”)2 alleging that he
received an influenza (“flu”) vaccination on September 22, 2015, and thereafter suffered from
brachial neuritis. See Petition at 1.
Respondent filed his Rule 4(c) Report (“Resp. Rpt.”) on July 11, 2018, recommending
against compensation in this matter. Resp. Rpt. at 10, ECF No. 14.
1
Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on
the Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No.
107-347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the
Decision will be available to anyone with access to the internet. However, the parties may object to the
Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b),
each party has fourteen days within which to request redaction “of any information furnished by that
party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or
(2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to
the public. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be
to 42 U.S.C. § 300aa of the Act.
On December 7, 2018, petitioner filed an expert report from Dr. Ahmet Hoke in support
of his claim. Pet. Ex. 9, ECF No. 16.
On May 28, 2019, respondent filed an amended Rule 4(c) Report (“Am. Rpt.”), stating
that, in light of Dr. Hoke’s report, respondent would not contest entitlement to compensation in
this case. Am. Rpt. at 8, ECF No. 20.
A special master may determine whether a petitioner is entitled to compensation based
upon the record. A hearing is not required. §300aa-13; Vaccine Rule 8(d). In light of
respondent’s position and a review of the record, the undersigned finds that petitioner is entitled
to compensation. This matter shall now proceed to the damages phase.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
2