Kalail v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0593V
UNPUBLISHED
ANGELA KALAIL, Chief Special Master Corcoran
Petitioner,
v. Filed: August 8, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Ruling on Entitlement; Concession;
Table Injury; Tetanus-Diphtheria-
Respondent. Acellular Pertussis (Tdap) Vaccine;
Shoulder Injury Related to Vaccine
Administration (SIRVA).
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On May 12, 2020, Angela Kalail 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 that as a result of a tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccine received in her right deltoid on October 31, 2018, she suffered
a shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On August 4, 2022, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner’s claim meets the Table criteria for SIRVA. Respondent’s Rule 4(c) Report
at 6 (citing 42 C.F.R. § 100.3 (a), (c)(10)). Therefore, Petitioner is entitled to a presumption
of vaccine causation.
1
Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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). This means the Ruling 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, I agree that
the identified material fits within this definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
Respondent adds: “Although Petitioner also received a non-covered vaccine
(Pneumovax) in her right deltoid contemporaneously with her covered Tdap vaccine,
Respondent believes the record insufficient to establish by preponderant evidence that
her injury was in fact caused by the non-covered vaccine. Accordingly, the evidence in
this case does not overcome the Table presumption of causation with regard to
Petitioner’s Tdap vaccination.” Id. at 6 (citing Section 13(a)(1)(B)).
With regard to other statutory and jurisdictional issues, Respondent agrees that
the records show that the case was timely filed, that the covered vaccine was received in
the United States, and that Petitioner satisfied the statutory severity requirement by
suffering the residual effects or complications of her injury for more than six months after
vaccine administration. Id. at 6 (citing Section 11(c)(1)(D)(i)). Petitioner also avers that
she has never received an award or settlement, or filed a civil action, for the injury
claimed. Id. (citing Ex. 6 at 2). Thus, Respondent concedes that entitlement is
compensation is appropriate under the terms of the Vaccine Act. Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2