Leming v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-232V
UNPUBLISHED
VICTORIA LEMING and KEVIN Chief Special Master Corcoran
LEMING, Parents and Natural
Guardians of A.L., a Minor, Filed: November 4, 2020
Petitioner, Special Processing Unit (SPU);
v. Ruling on Entitlement; Table Injury;
Diphtheria-tetanus-acellular pertussis
SECRETARY OF HEALTH AND (DTaP) Vaccine; Measles-mumps-
HUMAN SERVICES, rubella-varicella (MMRV) Vaccine;
Haemophilus influenzae type b (Hib)
Respondent. vaccine Thrombocytopenic Purpura
(ITP)
Robert Joel Krakow, Law Office of Robert J. Krakow, P.C. New York, NY, for Petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
On February 14, 2018, Victoria and Kevin Leming filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2
(the “Vaccine Act”) on behalf of their minor child, A.L. Petitioners alleges that a measles-
mumps-rubella-varicella (“MMRV”), a diphtheria-tetanus-acellular pertussis (“DTaP”),
and/or a Haemophilus influenzae type b (“Hib”) vaccine that A.L. received on September
6, 2016, caused her to suffer from immune thrombocytopenic purpura (“ITP”), immune
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Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required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).
dysfunction, and immunodeficiency. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On July 12, 2019, Special Master Dorsey issued a Ruling on Facts finding that
Petitioners successfully “established A.L.’s alleged injury meets the severity requirement
described in §300aa-11(c)(1)(D) of the Vaccine Act.” ECF No. 41 at 9. In reaction, on
November 2, 2020, Respondent filed an Amended Rule 4(c) Report indicating that while
preserving his right to appeal the July 12, 2019 Ruling, he agrees Petitioners have
“otherwise satisfied the legal prerequisites for compensation under the Vaccine Act.”
Respondent’s Rule 4(c) Report at 2 (citing 42 U.S.C. §§ 300aa-11(c)(1)(D), 300aa-
13(a)(1)).
Specifically, Respondent stated as follows:
In light of the Special Master’s fact ruling and medical record evidence
submitted in this case, [the Secretary] has concluded that petitioners’
daughter, A.L., suffered an episode of ITP related to her September 6, 2016
MMRV vaccination. In addition, A.L. suffered the residual effects of her
condition for more than six months. 42 U.S.C. § 300aa-11(c)(1)(D)(i).
Therefore, based on the record as it now stands, respondent does not
dispute that petitioner has satisfied all legal prerequisites for compensation
under the Act. See 42 U.S.C. § 300aa-13.
Id. at 4.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation. A Damages Order will issue.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master