Hubbard v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: December 30, 2021 *************************

LEILA M. HUBBARD, as parent and * No. 20-981V natural guardian, on behalf of J.B.B., * a minor, * Special Master Sanders *

Petitioner, * v. * Ruling on Entitlement; Hepatitis B Vaccine; * Diphtheria-Tetanus-Acellular Pertussis SECRETARY OF HEALTH * (“DTaP”) Vaccine; Pneumococcal Conjugate AND HUMAN SERVICES, * (“PCV”) Vaccine; Hemophilus Influenzae * Type B (“Hib”) Vaccine; Hepatitis A Respondent. * Vaccine; Sterile Abscesses * *************************

Robert D. Proffitt, Proffitt & Cox, LLP, Columbia, SC, for Petitioner.

Ronalda E. Kosh, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1

On August 6, 2020, Leila Hubbard (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that the Hepatitis B; diphtheria, tetanus, acellular pertussis (“DTaP”); pneumococcal conjugate (“PCV”); haemophilus influenzae type B (“Hib”); and Hepatitis A vaccines her child, J.B.B., received on October 31, 2017, January 5, 2018, March 9, 2018, May 14, 2018, November 2, 2018, February 14, 2019, and May 2, 2019, caused him to “suffer[] persistent and recurring sterile abscesses and related conditions in his right and left thighs where the vaccines were administered . . . .” Pet. ¶¶ 5–6, ECF No. 1.

On August 20, 2021, Respondent filed his report pursuant to Vaccine Rule 4(c). Resp’t’s Report, ECF No. 25. Respondent “recommend[ed] that compensation be awarded.” Id. at 1. He stated that a review of the record indicated that “J.B.B. developed persistent and recurring sterile abscesses, which were more likely than not caused by the administration of vaccines [listed in Petitioner’s petition] in J.B.B.’s left and right thighs.” Id. at 7. Respondent continued that Petitioner “has satisfied the statutory requirement that J.B.B.’s injury lasted for at least six months, or resulted in ‘inpatient hospitalization and surgical intervention’ as required by 42 U.S.C. § 300aa- 11(c)(1)(D)(i)(iii).” Id. Respondent concluded that “[P]etitioner has satisfied all legal prerequisites for compensation under the Act.” Id.

A special master may determine whether a petitioner is entitled to compensation based upon the record. A hearing is not required. §300aa-13; Vaccine Rule 8(d). In light of Respondent’s concession and a review of the record, I find that Petitioner is entitled to compensation. This matter shall now proceed to the damages phase.

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master