O’leary, M.D. v. Secretary of Health and Human Services


In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-584V Filed: June 24, 2021 PUBLISHED Special Master Horner ROBERT O’LEARY, M.D., Petitioner, Ruling on Entitlement; Shoulder v. Injury Related to Vaccine Administration; SIRVA; SECRETARY OF HEALTH AND Influenza Vaccine; Onset; HUMAN SERVICES, Adhesive Capsulitis Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Naseem Kourosh, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT 1 On April 25, 2018, petitioner, Robert O’Leary, M.D., filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2018) 2 (“the Act” or “the program”). (ECF No. 1.) Petitioner alleges that he suffered a Table Injury of shoulder injury related to vaccine administration (“SIRVA”) caused by an influenza (“flu”) vaccine he received on October 7, 2016. (Id.) For the reasons set forth below, I find that petitioner is entitled to compensation for a Table Injury of SIRVA. I. Procedural History Petitioner filed his petition, several medical records, and a sworn affidavit on April 25, 2018. (ECF No. 1; Exs. 1-4.) This case was initially assigned to the Special 1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will be posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision 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 the special master, upon review, agrees that the identified material fits within this definition, it will be redacted from public access. 2Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C. § 300aa-10-34. 1 Processing Unit (“SPU”). (ECF No. 6.) Petitioner filed a supplemental affidavit on June 12, 2018. (ECF No. 8; Ex. 5.) On March 1, 2019, respondent filed a status report indicating that he was willing to engage in settlement discussions. (ECF No. 17.) However, petitioner filed a status report on July 3, 2019 indicating that the parties were unable to reach an agreement and requesting that respondent file a Rule 4(c) report. (ECF No. 26.) Respondent filed his Rule 4(c) report on July 31, 2019, recommending against compensation. (ECF No. 28.) Respondent explained that petitioner’s alleged vaccine injury does not fit the criteria required for a Table SIRVA. (Id. at 1, 4.) Specifically, respondent suggested that the medical records do not demonstrate that petitioner’s symptoms began within 48 hours of vaccination and that alternate causes explain petitioner’s shoulder pain. (Id. at 4.) This case was reassigned to Special Master Roth on August 15, 2019. (ECF No. 29.) Petitioner filed two supplemental affidavits on November 11, and December 6 of 2019, (ECF Nos. 32, 33; …

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