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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1254V
UNPUBLISHED
GARY NEARY, Chief Special Master Corcoran
Petitioner, Filed: August 5, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Meningococcal Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Terrence Kevin Mangan, Jr., U.S. Department of Justice, Washington, DC, for
Respondent.
RULING ON ENTITLEMENT1
On April 20, 2022, Gary Neary 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 he suffered a shoulder injury related to vaccine
administration (SIRVA) resulting from the adverse effects of a meningococcal conjugated
vaccine and/or a meningococcal group B vaccine received on May 5, 2020. Petition at 1.
Petitioner further alleges that the vaccination was administered within the United States,
his symptoms persisted for more than six months, and neither he, nor any other party,
has ever filed any action, or received or accepted compensation in the form of an award
or settlement for his vaccine-related injury. Petition at 1, 4. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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.
2National 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).
On August 5, 2022, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1. Respondent found that Petitioner’s claim meets the Table criteria for SIRVA.
Specifically, Respondent determined that “[P]etitioner had no apparent 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; he more likely than not
suffered the onset of pain within forty-eight hours of vaccine administration; his pain and
reduced range of motion were limited to the shoulder in which the intramuscular vaccines
were administered; and there is no other condition or abnormality present that would
explain [P]etitioner’s symptoms.” Id. at 3-4. Respondent further agrees that “the case was
timely filed, that the vaccines were received in the United States, and that [P]etitioner
satisfies the statutory severity requirement by suffering the residual effects or
complications of his injury for more than six months after vaccine administration.” 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
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