Dimatteo v. Secretary of Health and Human Services ( 2014 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 1, 2014
* * * * * * * * * * * * * * * UNPUBLISHED
ROBERT DIMATTEO, *
* No. 10-566V
Petitioner, *
*
v. * Special Master Hamilton-Fieldman
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Ruling on Entitlement; Conceded;
* Varicella Vaccine; Transverse Myelitis
Respondent. * (“TM”).
* * * * * * * * * * * * * * *
Patricia Ann Finn, Patricia Finn Esq., Piermont, NY, for Petitioner.
Jennifer Reynaud, United States Department of Justice, Washington, D.C., for Respondent.
RULING ON ENTITLEMENT 1
On August 19, 2010, Robert and Susan DiMatteo filed a petition for compensation on
behalf of their minor son, Robert DiMatteo (“Petitioner”), 2 under the National Vaccine Injury
Compensation Program (“the Program”). 3 Mr. and Mrs. DiMatteo alleged that Hepatitis A and
Varicella vaccinations administered to Petitioner on August 12, 2009 caused him to suffer from
transverse myelitis (“TM”).
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002 § 205, 44 U.S.C. § 3501 (2006). In
accordance with the Vaccine Rules, each party has 14 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). Further, consistent with the rule requirement, a motion for redaction must include a
proposed redacted decision. If, upon review, the undersigned agrees that the identified material
fits within the requirements of that provision, such material will be deleted from public access.
2
Once he reached the age of majority, Robert DiMatteo was substituted for his parents as the
Petitioner in this case. See Order, dated March 27, 2014, at 1.
3
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual
section references will be to 42 U.S.C. § 300aa of the Act.
On November 28, 2014, Respondent filed an amended report pursuant to Vaccine Rule
4(c) in which she concedes that Petitioner is entitled to compensation in this case. Specifically,
Respondent agrees that “a preponderance of the evidence establishes that petitioner’s TM was
caused-in-fact by the administration of his August 12, 2009 varicella vaccine, and that
petitioner’s TM is not due to factors unrelated to the administration of the August 12, 2009
varicella vaccine.” Amended Rule 4 Report at 1-2.
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, the undersigned finds that Petitioner is
entitled to compensation. This matter shall now proceed to the damages phase.
IT IS SO ORDERED.
s/ Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
2