United States Court of Federal Claims, 2020

Lally v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided December 4, 2020 · Katherine E. Oler

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1426V (not to be published)

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* LINDSEY LALLY, *

* * Filed: October 9, 2020 Petitioner, *

* v. *

* Ruling on Entitlement; Tetanus- * Diphtheria-acellular-Pertussis (“Tdap”)

SECRETARY OF HEALTH AND * Vaccine; Shoulder Injury Related to HUMAN SERVICES, * Vaccine Administration (SIRVA)

* *

Respondent. *

* ************************* *

Amber Wilson, Wilson Science Law, Washington, DC, for Petitioner.

Christine Becer, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1

On October 4, 2017, Lindsey Lally (“Petitioner”) filed a petition, seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of the Tetanus-Diphtheria-acellular-Pertussis (“Tdap”) vaccination she received on August 8, 2016. Pet. at 1.

On July 24, 2019, Special Master Dorsey ruled that the onset of Petitioner’s shoulder injury occurred within 48 hours of vaccination. ECF No. 39. On October 9, 2020, Respondent filed an amended Rule 4(c) Report. Amended Resp’t’s Rep., ECF No. 57.

In the Amended Rule 4(c) Report, Respondent advised that “he will not defend this case on other grounds during further proceedings before the Office of Special Masters,” but reserved his right to appeal the factual finding. Amended Resp’t’s Rep. at 2. Respondent indicated that Petitioner “has otherwise satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation (“QAI”) for SIRVA.” Id. Respondent requested that I decide the issue of entitlement based on the existing record. Id.

In view of Respondent’s position and the evidence of record, I find that the Petitioner is entitled to compensation.

IT IS SO ORDERED. s/ Katherine E. Oler Katherine E. Oler Special Master

1 Although this Ruling has been formally designated “not to be published,” it will nevertheless be posted on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012).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 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 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 Ruling 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. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

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