Depetro v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1539V
UNPUBLISHED
MELANI DEPETRO, Chief Special Master Corcoran
Petitioner, Filed: November 25, 2019
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On October 16, 2019, Melani Depetro 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 that she suffered a shoulder injury related to
vaccine administration (“SIRVA”) resulting from the influenza vaccination on October 19,
2016. Petition at 1. Petitioner further alleges that she received the influenza
vaccination in the United States, that she suffered the residual effects of her injury for
more than six months, and that neither she nor any other party has received
compensation for her injury, alleged as vaccine caused. Id. at ¶¶ 16-18. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling 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, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On March 28, 2019, Special Master Dorsey (to whom this case was previously
assigned)3 issued a fact ruling, finding there is preponderant evidence to establish that
petitioner’s manifestation of onset after vaccine administration occurred within 48 hours.
Fact Ruling at 1-2, ECF No. 40.
Respondent has filed an amended Rule 4(c) report and proffer indicating that “[i]n
light of the former Chief Special Master’s Finding of Fact Ruling, and the medial
evidence submitted in this case, DICP has concluded that petitioner suffered SIRVA as
defined by the Vaccine Injury Table.” Amended Rule 4(c) Report and Proffer, filed Nov.
22, 2019, at 2-3, ECF No. 52. Respondent adds that “based on the record as it now
stands and subject to his right to appeal the Fact Ruling, respondent does not dispute
that petitioner has satisfied all legal prerequisites for compensation under the Act.” Id.
at 3.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 On October 1, 2019, former Chief Special Master Dorsey stepped down as Chief Special Master but
continues to adjudicate vaccine cases as Special Master Dorsey. The majority of SPU cases were
reassigned to Chief Special Master Corcoran.
2