Mendez v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1022V Filed: August 9, 2019 UNPUBLISHED

MARTHA PATRICIA MENDEZ, Petitioner, Special Processing Unit (SPU); v. Ruling on Entitlement; Concession; Causation-In-Fact; Influenza (Flu) SECRETARY OF HEALTH AND Vaccine; Axillary Nerve Injury HUMAN SERVICES, Respondent.

Larry Lee Thweatt, Jr. Terry & Thweatt, PC, Houston, TX, for petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT1 Dorsey, Chief Special Master: On July 16, 2018, 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 she suffered a nerve injury to her right shoulder from an influenza (“flu”) vaccine administered on September 18, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 8, 2019, 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 1The undersigned intends to post this ruling on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). at 1. Specifically, respondent states that “a preponderance of the medical evidence establishes that petitioner’s right axillary nerve injury was caused-in-fact by the flu vaccine she received on September 18, 2017.” Id. at 4. Respondent further agrees that “petitioner has satisfied all legal prerequisites for compensation under the Vaccine Act.”

Id. In view of respondent’s position and the evidence of record, the undersigned finds that petitioner is entitled to compensation.

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master