Kelly v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-0594V Filed: February 22, 2019 UNPUBLISHED

BRIAN KELLY,

Petitioner, v. Special Processing Unit (SPU); Joint

Stipulation on Damages; Influenza SECRETARY OF HEALTH (Flu) Vaccine; Shoulder Injury AND HUMAN SERVICES, Related to Vaccine Administration

(SIRVA) Respondent.

Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON JOINT STIPULATION1

Dorsey, Chief Special Master:

On May 3, 2017, Brian Kelly (“petitioner”) 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 he suffered a left-sided shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving a flu vaccine on or about October 15, 2015, in his left deltoid. Petition at 1-2; Stipulation, filed February 22, 2019, at ¶¶ 2, 4. Petitioner further alleges that he experienced the residual effects of this injury for more than six months. Petition at 2; Stipulation at ¶ 4. “Respondent denies that the flu immunization is the cause of petitioner’s alleged SIRVA and/or any other injury.” Stipulation at ¶ 6.

Nevertheless, on February 22, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein.

Pursuant to the terms stated in the attached Stipulation, the undersigned awards the following compensation:

A lump sum of $40,320.00, in the form of a check payable to petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

Receipt number 9998-3935912 In the United States Court of Federal Claims

OFFICE OF THE SPECIAL MASTERS FILED

Filed: 2017-05-03 MAY 3 2017

U.S. COURT OF BRIAN KELLY, FEDERAL CLAIMS

Petitioner, vs. CASE NO. 17-594 V

Special Master SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ___________________________________/

PETITION FOR COMPENSATION

COMES NOW the Petitioner, BRIAN KELLY, by and through Petitioner’s undersigned attorneys and hereby requests compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq., for injuries resulting from adverse effects of a vaccination or vaccinations, covered by 42 U.S.C. § 300aa-10, et seq. In support of this Petition, it is averred that:

1. Brian Kelly was born November 23, 1965.

2. On October 15, 2015, Petitioner received an influenza vaccination at CVS Caremark in Canton, OH. Pet. Ex. 1 at 2. This claim is brought for that vaccination and any other temporally related vaccinations covered by 42 U.S.C. § 300aa-14 that ongoing investigation may reveal.

3. On November 15, 2015, Petitioner reported to Dr. Andrew Ragon, with complaints of left anterior and posterior shoulder pain, spasms and limited range of motion, since receiving his influenza vaccination. Pet. Ex. 4 at 33.

4. On November 24, 2015, Petitioner presented to Dr. Leo Clavecilla, his primary care physician, with complaints of ongoing left arm pain, since his flu shot. He described arm pain, weakness and shooting pain, radiating up the left arm. Dr. Clavecilla ordered analgesics and referred Petitioner for orthopedic evaluation, with Dr. Joseph Blanda. Pet. Ex. 2 at 31-32.

5. On December 10, 2015, Petitioner presented to orthopedist, Dr. Joseph Blanda, with complaints of left shoulder pain, associated with his “flu shot, x2 months ago”. Upon physical examination, Dr. Blanda diagnosed Mr. Kelly with frozen shoulder and impingment syndrome. He administered a steroid injection in the left shoulder and ordered formal physical therapy. Pet. Ex. 3 at 5.

6. On April 6, 2016, Petitioner completed his formal outpatient physical therapy, with orders to continue at home exercise program for unspecified time frame. Pet. Ex. 3 at 7.

7. To the current date, Petitioner continues to suffer sequalae from SIRVA, specifically frozen shoulder with impingement syndrome, in his left shoulder and extremity.

8. Petitioner’s injuries are causally related to an adverse reaction to a vaccination or vaccinations listed in 42 U.S.C. § 300aa-14.

9. Petitioner’s vaccine related injuries have lasted more than six months. 10. Petitioner’s loss is compensable under the National Childhood Vaccine Injury Act of 1986, codified as amended at 42 U.S.C. §§ 300aa-10 to 34, inasmuch as the injuries set forth in the Exhibits are within the class of injuries enumerated by the Vaccine Injury Table, 42 U.S.C. § 300aa-14(a)-(b), and the rules promulgated by the Secretary.

11. Petitioner believes this case is appropriate for assignment to the Special Processing Unit as this Petition provides a thorough and concise summary of the allegations upon which the claim is based; a complete set of medical records will be filed; the injury is clearly supported by the medical records; there is strong medical/legal support for the causal relationship; and damages should be able to be ascertained without the need for expert analysis.

12. Neither the Petitioner, nor any other party, has ever brought an action for Petitioner’s vaccine-related injuries.

13. Neither the Petitioner, nor any other party, has ever received compensation in the form of an award or settlement for Petitioner’s vaccine-related injuries.

14. The Respondent, the Secretary of the Department of Health and Human Services of the United States of America, is named herein pursuant to 42 U.S.C. § 300aa-12(b)(1).

15. Petitioner will file all relevant medical records and fact witness affidavits required by 42 U.S.C. § 300aa-11(c)-(d) and Vaccine Rule 2(c)(2).

16. The Petitioner requests that Petitioner’s compensation demand (including attorney’s fees and costs) be deferred at this time pursuant to 42 U.S.C. § 300aa-11(e), until such time as the entitlement issue has been resolved.

17. Undersigned counsel certifies that counsel has a valid ECF account with the United States Court of Federal Claims.

/s/ Diana L. Stadelnikas Diana L. Stadelnikas, Esq.

Florida Bar Number 0949061 Maglio Christopher & Toale, PA 1605 Main Street, Suite 710 Sarasota, FL 34236 941.952.5242 fax 941.952.5042

Dated: May 3, 2017 Attorney for the Petitioner

CERTIFICATE OF SERVICE

I affirm that this petition is hereby electronically filed with the Clerk of the United States Court of Federal Claims. A copy of the petition was served by first class, certified mail upon the Respondent at the address below on May 3, 2017.

Secretary of the Department of Health and Human Services c/o Director, Division of Vaccine Injury Compensation Healthcare System Bureau Parklawn Building, Room 08N146B 5600 Fishers Lane Rockville, MD 20857

/s/ Kimberly A. Grabbe Kimberly A. Grabbe, Advanced Certified Paralegal