Orion v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-806V UNPUBLISHED

RONALD ORION, Chief Special Master Corcoran

Petitioner, Filed: January 11, 2022 v.

Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Onset;Tetanus HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap)

Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA);

Brachial Neuritis David John Carney, Green & Schafle, LLC, Philadelphia, PA, for Petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CASE 1 On July 1, 2020, Ronald Orion 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 a Tdap vaccine Petitioner received on September 6, 2017, caused him to suffer the Table injury of Parsonage-Turner Syndrome (also known as brachial neuritis); alternatively that his brachial neuritis was caused-in-fact by his vaccination; or that he suffered a different Table Injury, shoulder injury related to vaccine administration (“SIRVA”). Amended Petition filed October 22, 2020. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). I. Relevant Procedural History – Order to Show Cause

On November 19, 2020, Respondent filed his counsel’s informal assessment of this case, pursuant to my Order, identifying a legal issue regarding the onset of Petitioner’s alleged brachial neuritis. ECF No. 14 at 2. On July 14, 2021, I issued an Order to Show Cause, as it appeared based upon my review that Petitioner would neither be able to establish any form of Table claim - brachial neuritis or SIRVA. ECF No. 18. I therefore advised Petitioner that I would likely reassign this case from SPU, since all that remains to be litigated is some form of causation-in-fact claim that is not appropriate for resolution in SPU. ECF No. 18 at 2. I further advised that if I determined that Petitioner’s Table claims must be dismissed, I would issue Findings of Fact and Conclusion of Law Dismissing Petitioner’s Table Claims, and transfer the matter out of SPU. Id. at 3.

On August 17, 2021, Petitioner filed a Status Report in response to my Order to Show Cause, indicating that he “will consent to the Table claims of SIRVA and brachial neuritis being dismissed while preserving Petitioner’s right to proceed under a causation- in-fact claim for either SIRVA and/or brachial neuritis after receipt of vaccination.” ECF No. 19.

On September 14, 2018, Respondent filed a response to Petitioner’s Show Cause Filing/Status Report, representing that he “does not object to (1) the transfer of this case out of the SPU, (2) the dismissal of the Table claims of SIRVA and brachial neuritis, or (3) [P]etitioner’s request to preserve his right to proceed under a theory of causation-in- fact for his alleged brachial neuritis.” ECF No. 20 at 1 (emphasis in original). Respondent, however, argues that “because ‘SIRVA’ is an injury defined by administrative rulemaking, . . . [P]etitioner may not pursue a cause-in-fact SIRVA claim.” Id. Rather, Respondent asserts, Petitioner may only pursue a cause-in-fact claim to a specific shoulder injury if one can be established. Id. at 1-2.

II. Analysis and Findings of Fact

To establish a Table claim for brachial neuritis, onset of the injury must occur not less than two days, or more than 28 days, following vaccination. 42 C.F.R. § 100.3(a)(I)(B). However, in this case the record supports the conclusion that onset of Petitioner’s symptoms occurred six hours 3 after his receipt of the Tdap vaccine - thus precluding a Table claim for brachial neuritis. Ex. 1 at 66; see also ECF No. 14 at 2 (Respondent’s informal assessment raising this issue), ECF No. 18 (my Order to Show Cause discussing this issue and directing Petitioner to Show Cause why his brachial neuritis Table claim should not therefore be dismissed). Petitioner has offered no evidence or argument to the contrary, and has consented to the dismissal of this aspect of his overall case. ECF No. 19.

In regard to Petitioner’s alternative claim of a Table SIRVA, Petitioner has likewise failed to establish the QAI requirements for a SIRVA Table case, 4 given his treaters’ assessments of “radicular pain in left arm” (Ex. 1 at 69) and “Parsonage-Turner syndrome” (Ex. 3 at 25), as well as Petitioner’s pre-vaccination history of a left shoulder arthroplasty in January 2015 to treat osteoarthritis (ECF No. 13 at ¶2). See also ECF No.

On 9/6/17, the patient was in the ED for right eye pain and received a tetanus shot. Six hours later, he states that pain to the left arm began starting in the shoulder and radiating to the hand. Aleve and ibuprofen taken at home have been ineffective for pain relief. Hardware in the lef t arm s/p previous shoulder surgery noted. Due to persistent pain, he has come to the ED for further evaluation.

Ex. 1 at 66. The impression was radicular left arm pain. Id. at 69. On November 22, 2017, a diagnosis of Parsonage-Turner Syndrome was confirmed. Ex. 3 at 25.

18 at 2-3 (my Order to Show discussing these issues and directing Petitioner to Show Cause why his Table SIRVA claim should not be dismissed). Again, Petitioner has offered no additional evidence or argument to the contrary, and has consented to the dismissal of his Table SIRVA claim. ECF No. 19.

Accordingly, for the above stated reasons I find 5 that Petitioner has failed to demonstrate the Table requirements for brachial neuritis (42 C.F.R. § 100.3(a)(I)(B)) and SIRVA (42 C.F.R. § 100.3(c)(10)), and hereby dismiss Petitioner’s Table brachial neuritis and SIRVA claims.

III. Scheduling Order

In light of the instant ruling, I will proceed with transferring Petitioner’s case out of SPU and will randomly reassign the case to a special master to conduct further proceedings to establish whether Petitioner has demonstrated an off-Table case for some kind of injury. 6

On October 18, 2021, Petitioner filed a Status Report indicating that he was waiting to receive a set of records requested by Respondent from Hospital of Special Surgery and would file these records upon receipt. ECF No. 22. These records have not yet been filed. Accordingly, Petitioner shall file his outstanding records from Hospital of Special Surgery, by no later than February 10, 2022.

IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master