Erb v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-313V
SIERRA ERB, Chief Special Master Corcoran
Petitioner, Filed: October 30, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Neil Bhargava, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
On January 8, 2021, Sierra Erb 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 she suffered a Table injury – shoulder injury related to
vaccine administration (“SIRVA”), as the result of the tetanus-diphtheria-acellular-
pertussis (“Tdap”) vaccination she received on October 27, 2020. Petition at 1; Amended
Petition, filed March 2, 2023, at 1. Petitioner further alleges that she suffered the residual
effects of her injury for more than six months, and that there has been no prior award or
settlement of a civil action on her behalf as a result of her injury. Amended Petition at ¶¶
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 (2018).
11, 13. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On October 27, 2023, 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. Specifically, Respondent indicates that he
has concluded that petitioner’s alleged injury is consistent with SIRVA as
defined by the Vaccine Injury Table. Specifically, petitioner had no history
of pain, inflammation, or dysfunction of her left shoulder prior to
vaccination; pain occurred within 48 hours after receipt of an intramuscular
vaccination; pain was limited to the shoulder in which the vaccine was
administered; and no other condition or abnormality has been identified to
explain petitioner’s shoulder pain.
Id. at 9 (citing 42 C.F.R. §§ 100.3(a),(c)(10)). Respondent further agrees that Petitioner
has suffered the sequela of her injury for more than six months and has otherwise
satisfied all legal requirements for compensation under the 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
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