Washington v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1548V UNPUBLISHED

INDIA WASHINGTON, Mother and Chief Special Master Corcoran Natural Guardian of Infant, Z.K., Filed: January 21, 2020 Petitioner, v. Special Processing Unit (SPU); Ruling on Entitlement; Concession; SECRETARY OF HEALTH AND Causation-In-Fact; Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap) Vaccine; Sterile Abscess Respondent.

Michael M. Bast, Michael M. Bast PC, Brooklyn, NY, for petitioner.

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

RULING ON ENTITLEMENT 1 On January 15, 2020, India Washington, mother and natural guardian of Z.K., filed an amended 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 Z.K. suffered sterile abscess injury of the left upper extremity caused-in-fact by a Tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination administered on March 5, 2018. Amended Petition at 10-11. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

On January 16, 2020, 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 has determined that Z.K.’s medical course is consistent with a sterile abscess in his left upper extremity, which was more likely than not caused by administration of a Tdap vaccine in that same location. Id. at 6.

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, I find that Petitioner is entitled to compensation.

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master