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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0594V
Filed: February 22, 2019
UNPUBLISHED
BRIAN KELLY,
Petitioner,
v. Special Processing Unit (SPU); Joint
Stipulation on Damages; Influenza
SECRETARY OF HEALTH (Flu) Vaccine; Shoulder Injury
AND HUMAN SERVICES, Related to Vaccine Administration
(SIRVA)
Respondent.
Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
Dorsey, Chief Special Master:
On May 3, 2017, Brian Kelly (“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 he suffered a left-sided shoulder injury related to
vaccine administration (“SIRVA”) as a result of receiving a flu vaccine on or about
October 15, 2015, in his left deltoid. Petition at 1-2; Stipulation, filed February 22, 2019,
at ¶¶ 2, 4. Petitioner further alleges that he experienced the residual effects of this
injury for more than six months. Petition at 2; Stipulation at ¶ 4. “Respondent denies
that the flu immunization is the cause of petitioner’s alleged SIRVA and/or any other
injury.” Stipulation at ¶ 6.
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. 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. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required 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).
2
National 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).
Nevertheless, on February 22, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. The
undersigned finds the stipulation reasonable and adopts it as the decision of the Court
in awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, the undersigned
awards the following compensation:
A lump sum of $40,320.00, in the form of a check payable to petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a). Id.
The undersigned approves the requested amount for petitioner’s compensation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
Receipt number 9998-3935912
In the United States Court of Federal Claims
OFFICE OF THE SPECIAL MASTERS FILED
Filed: 2017-05-03 MAY 3 2017
U.S. COURT OF
BRIAN KELLY, FEDERAL CLAIMS
Petitioner,
vs. CASE NO. 17-594 V
Special Master
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
___________________________________/
PETITION FOR COMPENSATION
COMES NOW the Petitioner, BRIAN KELLY, by and through Petitioner’s undersigned
attorneys and hereby requests compensation under the National Vaccine Injury Compensation
Program, 42 U.S.C. § 300aa-10, et seq., for injuries resulting from adverse effects of a
vaccination or vaccinations, covered by 42 U.S.C. § 300aa-10, et seq. In support of this Petition,
it is averred that:
1. Brian Kelly was born November 23, 1965.
2. On October 15, 2015, Petitioner received an influenza vaccination at CVS
Caremark in Canton, OH. Pet. Ex. 1 at 2. This claim is brought for that vaccination and any
other temporally related vaccinations covered by 42 U.S.C. § 300aa-14 that ongoing
investigation may reveal.
3. On November 15, 2015, Petitioner reported to Dr. Andrew Ragon, with complaints
of left anterior and posterior shoulder pain, spasms and limited range of motion, since receiving
his influenza vaccination. Pet. Ex. 4 at 33.
Petition for Compensation on behalf of BRIAN KELLY
Page 1 of 4
4. On November 24, 2015, Petitioner presented to Dr. Leo Clavecilla, his primary
care physician, with complaints of ongoing left arm pain, since his flu shot. He described arm
pain, weakness and shooting pain, radiating up the left arm. Dr. Clavecilla ordered analgesics
and referred Petitioner for orthopedic evaluation, with Dr. Joseph Blanda. Pet. Ex. 2 at 31-32.
5. On December 10, 2015, Petitioner presented to orthopedist, Dr. Joseph Blanda, with
complaints of left shoulder pain, associated with his “flu shot, x2 months ago”. Upon physical
examination, Dr. Blanda diagnosed Mr. Kelly with frozen shoulder and impingment syndrome.
He administered a steroid injection in the left shoulder and ordered formal physical therapy. Pet.
Ex. 3 at 5.
6. On April 6, 2016, Petitioner completed his formal outpatient physical therapy, with
orders to continue at home exercise program for unspecified time frame. Pet. Ex. 3 at 7.
7. To the current date, Petitioner continues to suffer sequalae from SIRVA,
specifically frozen shoulder with impingement syndrome, in his left shoulder and extremity.
8. Petitioner’s injuries are causally related to an adverse reaction to a vaccination or
vaccinations listed in 42 U.S.C. § 300aa-14.
9. Petitioner’s vaccine related injuries have lasted more than six months.
10. Petitioner’s loss is compensable under the National Childhood Vaccine Injury Act
of 1986, codified as amended at 42 U.S.C. §§ 300aa-10 to 34, inasmuch as the injuries set forth
in the Exhibits are within the class of injuries enumerated by the Vaccine Injury Table, 42 U.S.C.
§ 300aa-14(a)-(b), and the rules promulgated by the Secretary.
11. Petitioner believes this case is appropriate for assignment to the Special Processing
Unit as this Petition provides a thorough and concise summary of the allegations upon which the
claim is based; a complete set of medical records will be filed; the injury is clearly supported by
Petition for Compensation on behalf of BRIAN KELLY
Page 2 of 4
the medical records; there is strong medical/legal support for the causal relationship; and
damages should be able to be ascertained without the need for expert analysis.
12. Neither the Petitioner, nor any other party, has ever brought an action for
Petitioner’s vaccine-related injuries.
13. Neither the Petitioner, nor any other party, has ever received compensation in the
form of an award or settlement for Petitioner’s vaccine-related injuries.
14. The Respondent, the Secretary of the Department of Health and Human Services of
the United States of America, is named herein pursuant to 42 U.S.C. § 300aa-12(b)(1).
15. Petitioner will file all relevant medical records and fact witness affidavits required
by 42 U.S.C. § 300aa-11(c)-(d) and Vaccine Rule 2(c)(2).
16. The Petitioner requests that Petitioner’s compensation demand (including attorney’s
fees and costs) be deferred at this time pursuant to 42 U.S.C. § 300aa-11(e), until such time as
the entitlement issue has been resolved.
17. Undersigned counsel certifies that counsel has a valid ECF account with the United
States Court of Federal Claims.
/s/ Diana L. Stadelnikas
Diana L. Stadelnikas, Esq.
Florida Bar Number 0949061
Maglio Christopher & Toale, PA
1605 Main Street, Suite 710
Sarasota, FL 34236
941.952.5242
fax 941.952.5042
Dated: May 3, 2017 Attorney for the Petitioner
Petition for Compensation on behalf of BRIAN KELLY
Page 3 of 4
CERTIFICATE OF SERVICE
I affirm that this petition is hereby electronically filed with the Clerk of the United States
Court of Federal Claims. A copy of the petition was served by first class, certified mail upon the
Respondent at the address below on May 3, 2017.
Secretary of the Department of Health and Human Services
c/o Director, Division of Vaccine Injury Compensation
Healthcare System Bureau
Parklawn Building, Room 08N146B
5600 Fishers Lane
Rockville, MD 20857
/s/ Kimberly A. Grabbe
Kimberly A. Grabbe, Advanced Certified Paralegal
Petition for Compensation on behalf of BRIAN KELLY
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