Cericola v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0155V
(Not to be Published)
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MICHAEL CERICOLA, *
* Special Master Oler
Petitioner, * Filed: July 19, 2019
v. *
* Petitioner’s Motion for a Decision;
SECRETARY OF HEALTH * Dismissal of Petition; Vaccine
AND HUMAN SERVICES, * Act; Denial Without Hearing.
*
Respondent. *
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Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Heather Lynn Pearlman, U.S. Dep’t of Justice, Washington, D.C. for Respondent.
DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1
On January 31, 2018, Michael Cericola (“Petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program,2 alleging that he suffered from a right
Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of the influenza (“flu”)
vaccination that he received on October 3, 2016. Petition (“Pet.”) at 1, ECF No. 1. This case was
originally assigned to Chief Special Master Nora Beth Dorsey as part of the Special Processing
Unit. ECF No. 4.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’s 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 decision’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 Decision 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. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
statutory prefix).
On May 20, 2019, Respondent filed a Rule 4(c) Report. ECF No. 24. Respondent stated
that Petitioner had not satisfied his burden of proof, specifically noting that Petitioner had not
provided medical records or a medical expert report establishing the following, that: (1)
Petitioner’s vaccination was administered in the right shoulder, (2) Petitioner right shoulder injury
did not predate his vaccination, (3) Petitioner’s onset of right shoulder pain occurred within 48
hours of vaccination, and (4) Petitioner’s right shoulder pain was consistent with SIRVA. Id. at 4-
5. Respondent further argued that Petitioner had failed to establish that “he suffered the residual
effects or complications of his alleged shoulder injury for more than six months after vaccine
administration as required by Section 11(c)(1)(D) of the Vaccine Act.” Id. at 6.
This case was reassigned to my docket on May 30, 2019. ECF No. 26.
On July 19, 2019, Petitioner filed the present motion to dismiss his claim and a
supplemental declaration, indicating that “[a]n investigation of the facts and science supporting
his case has demonstrated to [Petitioner] that he will be unable to prove that he is entitled to
compensation in the Vaccination Program.” See Petitioner’s Motion to Dismiss, ECF Nos. 29-31.
To receive compensation under the Vaccine Program, a petitioner must prove either (1)
that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused
by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner
may not receive a Vaccine Program award based solely on his claims alone. Rather, the petition
must be supported by either medical records or by the opinion of a competent medical expert.
Section 13(a)(1). In this case, however, there is insufficient evidence in the record for Petitioner
to meet his burden of proof. Petitioner’s claim, therefore, cannot succeed and in accordance with
his motion, must be dismissed. Section 11(c)(1)(A).
Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.3
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
2