Crispo v. Secretary of Health and Human Services

CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-640V
(not to be published)
************************* Chief Special Master Corcoran
ADAM CRISPO, *
* Filed: April 30, 2020
Petitioner, *
*
v. *
* Keywords: Ruling granting
SECRETARY OF HEALTH AND * entitlement; SIRVA;
HUMAN SERVICES, * Meningococcal vaccine.
*
Respondent. *
*
*************************
Bruce William Slane, Law Office of Bruce W. Slane, P.C., NY, for Petitioner
James Vincent Lopez, U.S. Dep’t of Justice, Washington, D.C., for Respondent
RULING GRANTING ENTITLEMENT1
On May 4, 2018, Adam Crispo filed a petition seeking compensation under the National
Vaccine and Injury Compensation Program (the “Vaccine Program”). 2 Petition at 1(ECF No. 1).
Petitioner alleges a Table claim—that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) attributable to a meningococcal vaccine he received on January 20,
2017. Although the medical records filed in this case establish that Petitioner received extensive
treatment for left arm and shoulder symptoms, other records seemed to establish that he had
1
This Ruling will 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 that the Decision 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 whole
Ruling will be available to the public in its current form. Id.
2
Counsel filed a status report on November 7, 2019, informing me of Ms. Rowan’s passing in September 2019, and
also stating that her estate would be continuing to prosecute the claim. ECF No. 34. Earlier this month, counsel
indicated that an estate representative had finally been appointed, and the caption has been revised to reflect the new
petitioner. Order, dated April 16, 2020 (ECF No. 36).
received vaccines (one meningococcal vaccine and one yellow fever vaccine, which cannot be the
basis for a Program claim) in his right arm and deltoid.
A one-day fact hearing was held on January 17, 2020, to address both onset and situs of
vaccination issues. At the conclusion of the hearing, I made two factual findings necessary, but
not sufficient, to find in Petitioner’s favor.3 See Order at 1–2, filed Jan. 21, 2020 (ECF No. 36).
First, I found that Petitioner preponderantly established pain onset within 48 hours of vaccine
administration. Id. at 1. Second, I found that Petitioner preponderantly established that he received
the vaccines in his left arm. Id. at 2.
However, I noted that the hearing did not resolve all the issues regarding entitlement. Order
at 2. Petitioner still needed to establish either that the meningococcal vaccine alone caused his
injuries, or that it was the most likely “but for” cause of his injury, even if other factors (here,
receipt of the yellow fever vaccine) played a role. See id. (citing Shyface v. Sec’y of Health &
Human Servs., 165 F.3d 1344 (1999)). Proving either theory could require expert testimony,
another hearing, or possibly both. Id. Further, the facts of Petitioner’s case indicated that any
potential entitlement award would likely be modest. Id. Given all of the above, I encouraged the
parties to explore settling the case. Id.On March 23, 2020, the parties submitted a joint status report indicating that Respondent
did not intend to defend this case on other grounds, due to the factual findings made at the January
17th hearing. Joint Status Rep. at 1 (ECF No. 42). Respondent requested thirty days to file an
amended Rule 4(c) report to set forth his revised position. Id. On April 23, 2020, Respondent
submitted an amended 4(c) Report, in which he conceded that “Petitioner suffered SIRVA as
defined by the Vaccine Injury Table.” Amended 4(c) Rep. at 5, filed on April 23, 2020 (ECF No.
43). Respondent maintained that Petitioner’s damages—if I award him entitlement—were limited
to his “SIRVA and related sequalae only.” Id. Respondent also requested more information from
Petitioner—e.g., more medical records, information on insurance policies, and care that Petitioner
received for his SIRVA injury—that would help resolve the amount of compensation in this case.
Id. at 6–7.
CONCLUSION
In light of Respondent’s Amended 4(c) Report and the concession it contains, as well as
my fact hearing findings, I hereby determine that Petitioner has established an entitlement to
damages under the Table’s SIRVA injury claim, and may therefore receive compensation under
the Act for damages related to his SIRVA and its sequalae.
3
To establish a Table SIRVA claim, a petitioner must show that onset of pain occurred within 48 hours, and that the
“[p]ain and reduced range of motion are limited to the shoulder in which the intramuscular vaccine was administered.”
42 C.F.R. § 100.3(a)(XV)(B), (c)(10)(iii).
2
In order to guide the parties through the damages phase of the action, a separate damages
order will issue.
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3