Campbell v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
KATHLEEN CAMPBELL, *
* No. 17-438V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: December 28, 2020
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement, dismissal
*
Respondent. *
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Joseph A. Vuckovich, Maglio Christopher and Toale, PA, Washington, DC, for
petitioner;
Lisa A. Watts and Althea Walker Davis, United States Dep’t of Justice,
Washington, DC, for respondent.
UNPUBLISHED DECISION DENYING COMPENSATION1
Kathleen Campbell alleged that an influenza vaccine caused her to suffer an
injury to her left shoulder that developed within 24 hours of receiving the vaccine.
Pet., filed March 27, 20127. The information in the record, however, does not
show entitlement to an award under the Program primarily because the onset of
Ms. Campbell’s significant shoulder pain started after a fall, occurring
approximately three weeks after the vaccination.
1 Because this unpublished decision contains a reasoned explanation for the special
master’s action in this case, the special master intends to post it on the United States Court of
Federal Claims’s website, in accordance with the E-Government Act, 44 U.S.C. § 3501 note
(2012) (Federal Management and Promotion of Electronic Government Services). This posting
will make the decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
I. Procedural History2
Ms. Campbell alleged a Table shoulder injury related to vaccine
administration (“SIRVA”) where she developed pain in her left shoulder within 24
hours of her October 7, 2015 influenza vaccination. Pet., filed Mar. 27, 2017, at 1.
Ms. Campbell filed medical records and eventually a statement of completion on
May 10, 2017.
Once the Secretary completed his review of the record, the parties engaged
in initial settlement negotiations. Resp’t’s Status Rep., filed Oct. 30, 2017. Before
proceeding further with settlement negotiations, Ms. Campbell requested the
opportunity to improve the factual foundations of her case by submitting affidavits
from fact witnesses. Pet’r’s Status Rep., filed Dec. 14, 2017. Ms. Campbell
submitted the affidavits and then proceeded with settlement. Pet’r’s Status Rep.
filed May 7, 2018. At a June 11, 2018 status conference, the Secretary noted that
settlement negotiations had continued, but he intended to proceed with the
litigation track and proposed a due date for his Rule 4 report.
In the Rule 4 report, the Secretary argued that Ms. Campbell’s pre-existing
shoulder injuries prevented her from claiming a Table SIRVA and her post-
vaccination left shoulder pain was the result of catching her partner, Joseph
Haeckel, when he fell. Resp’t’s Rep., filed July 6, 2018, at 6 n.4. After a status
conference to discuss the Rule 4 report, Ms. Campbell was ordered to provide an
affidavit to discuss her partner’s fall and to consider providing an affidavit from
her partner. Order, issued July 26, 2018. Ms. Campbell filed an affidavit
regarding the fall but did not file an affidavit from Mr. Haeckel. Exhibit 17. The
parties again entered into settlement negotiations.
At a November 16, 2018 status conference, the undersigned noted that the
parties had spent a long time in settlement negotiations considering the extent of
damages and the case would be placed in a queue for a fact hearing after Ms.
Campbell confirmed that all documentary evidence had been filed. Order, issued
Nov. 19, 2018. Ms. Campbell confirmed that all documentary evidence had been
filed but again requested additional time to resolve the case informally. Pet’r’s
Status Rep., filed Dec. 19, 2018.
After a few more months of negotiations, Ms. Campbell advised that the
parties had not been able to resolve the case informally and requested that a fact
2 Much of the procedural history is taken from the June 10, 2020 Ruling Finding Facts.
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hearing be scheduled. Pet’r’s Status Rep., filed Apr. 17, 2019. A fact hearing was
then scheduled and onset statements were ordered. Order, issued Dec. 19, 2019;
order issued Jan. 9, 2020. Ms. Campbell filed her onset statement and additional
evidence on February 21, 2020. The Secretary then filed his onset statement on
March 12, 2020.
The pre-hearing status conference clarified that the primary issues were
whether Ms. Campbell’s pre-vaccination shoulder pain resolved and when Ms.
Campbell’s shoulder pain began post-vaccination. Order, issued Apr. 6, 2020. A
fact hearing was held on April 16, 2020, in which Ms. Campbell and two other
witnesses testified.3
A June 10, 2020 Ruling found facts about the onset of Ms. Campbell’s
shoulder pain. Ms. Campbell began to experience severe shoulder pain on October
26, 2015, after she attempted to prevent her partner from falling at a McDonald’s
restaurant.
Following the June 10, 2020 Ruling, Ms. Campbell was given an
opportunity to express a plan for the next steps in her case. Ms. Campbell stated
that she did not intend to obtain a report from an expert. Pet’r’s Status Rep., filed
July 29, 2020. To date, Ms. Campbell has not filed anything else.
II. Analysis
To receive compensation under the National Vaccine Injury Compensation
Program, a petitioner must prove either 1) that she suffered a “Table Injury” – i.e.,
an injury falling within the Vaccine Injury Table – corresponding to one of her
vaccinations, or 2) that she suffered an injury that was actually caused by a
vaccine. See 42 U.S.C. § 300aa–13(a)(1)(A) and 300aa-11(c)(1).
Ms. Campbell’s petition asserts an on-Table claim. While Ms. Campbell
alleged she suffered a shoulder injury starting within 48 hours of the vaccination,
the evidence did not support this allegation. The finding that Ms. Campbell’s
lasting shoulder pain started approximately three weeks after the vaccination meant
that Ms. Campbell could not prevail on her claim that she suffered an on-Table
injury. 42 C.F.R. § 100.3(c)(10).
3 The hearing was originally scheduled to be held in San Antonio, Texas, but, due to
restrictions from the coronavirus pandemic, the hearing was held via video conferencing.
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As an alternative to the on-Table claim, Ms. Campbell might pursue a
causation-in-fact claim. Under the Vaccine Act, a petitioner may not be given a
Program award based solely on the petitioner’s claims alone. Rather, the petition
must be supported by either medical records or by the opinion of a competent
physician. 42 U.S.C. § 300aa–13(a)(1). In this case, because the medical records
do not support petitioner’s claim based upon the facts as found in the June 10,
2020 Ruling, a medical opinion must be offered in support. However, Ms.
Campbell declined to present a medical opinion.
Accordingly, it is clear from the record that Ms. Campbell has failed to
demonstrate that she suffered a “Table Injury,” or that the flu vaccine “actually
caused” her shoulder problem.
Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.
Any questions may be directed to my law clerk, Jason Wiener, at
(202) 357-6360.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
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