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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1426V
(not to be published)
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LINDSEY LALLY, *
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* Filed: October 9, 2020
Petitioner, *
*
v. *
* Ruling on Entitlement; Tetanus-
* Diphtheria-acellular-Pertussis (“Tdap”)
SECRETARY OF HEALTH AND * Vaccine; Shoulder Injury Related to
HUMAN SERVICES, * Vaccine Administration (SIRVA)
*
*
Respondent. *
*
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Amber Wilson, Wilson Science Law, Washington, DC, for Petitioner.
Christine Becer, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On October 4, 2017, Lindsey Lally (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF
No. 1. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”) as a result of the Tetanus-Diphtheria-acellular-Pertussis (“Tdap”) vaccination she
received on August 8, 2016. Pet. at 1.
1
Although this Ruling has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Ruling will be available to anyone with access to the internet. As provided
by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Ruling’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 Ruling in its present form will be available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter
“Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the
pertinent subparagraph of 42 U.S.C. § 300aa.
On July 24, 2019, Special Master Dorsey ruled that the onset of Petitioner’s shoulder injury
occurred within 48 hours of vaccination. ECF No. 39. On October 9, 2020, Respondent filed an
amended Rule 4(c) Report. Amended Resp’t’s Rep., ECF No. 57.
In the Amended Rule 4(c) Report, Respondent advised that “he will not defend this case
on other grounds during further proceedings before the Office of Special Masters,” but reserved
his right to appeal the factual finding. Amended Resp’t’s Rep. at 2. Respondent indicated that
Petitioner “has otherwise satisfied the criteria set forth in the Vaccine Injury Table and the
Qualifications and Aids to Interpretation (“QAI”) for SIRVA.” Id. Respondent requested that I
decide the issue of entitlement based on the existing record. Id.
In view of Respondent’s position and the evidence of record, I find that the Petitioner
is entitled to compensation.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master