In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1165V
Filed: November 29, 2016
Unpublished
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KATHRYN S. LEFFLER, *
*
Petitioner, * Fact Ruling; Influenza (“Flu”) Vaccine;
* Shoulder Injury Related to Vaccine
v. * Administration (“SIRVA”); Conflicting
* Evidence of Vaccine Injection Site;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Daniel H. Pfeifer, Pfeifer, Morgan & Stesiak, South Bend, IN, for petitioner.
Michael P. Milmoe, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON FACTS 1
Dorsey, Chief Special Master:
On October 9, 2015, Kathryn S. Leffler (“petitioner”) 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 she suffered a right
shoulder injury that was caused-in-fact by an influenza (“flu”) vaccination she received
on October 11, 2012. Petition at 1. The case was assigned to the Special Processing
Unit (“SPU”) of the Office of Special Masters.
I. Summary of Dispute
Petitioner received an influenza vaccination on October 11, 2012. Exhibit 8. The
immunization record clearly documents that the vaccine was administered to petitioner’s
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
left deltoid; petitioner, however, asserts it was given on the right side. In an affidavit
filed after the initial status conference, petitioner states that the vaccine record “is
mistaken.” Exhibit 9. She states that she is “left handed and ha[s] never had any shots
[in] other than [her] right shoulder.” Id. She also states that the “administrator [had]
wanted to inject [her] left shoulder,” but that she “declined more than once.” Id.
Despite petitioner’s attestations, respondent continued to have concerns about
this issue and requested a status conference to address the matter. See Status Rep.,
filed Nov. 1, 2016 (ECF No. 45). The status conference was convened on November
22, 2016. Daniel Pfeifer appeared for petitioner and Michael Milmoe appeared for
respondent.
At the start of the conference, Mr. Milmoe informed the undersigned that he and
Mr. Pfeifer had communicated via e-mail about this issue, and that during the exchange,
Mr. Pfeifer, and his associate Jerry McKeever, presented him with a concise summary
of the evidence they believe supports petitioner’s assertion. Mr. Milmoe read the
summary for the undersigned’s consideration. 3 After more discussion, the undersigned
informed the parties that she was prepared to issue a fact ruling, having thoroughly
reviewed and considered the evidence before her. Both parties, through counsel,
consented to the undersigned issuing the ruling during the status conference.
The undersigned thereafter stated that she found preponderant support for
finding that petitioner received the October 11, 2012 influenza vaccination in her right
shoulder, as she claims. The undersigned then identified and discussed in detail the
evidence upon which her finding was based.
II. Summary of Facts Supporting Finding
The evidence in favor of petitioner’s assertion that she was vaccinated in her
right arm includes the following:
1. Petitioner’s initial affidavit wherein she states that she received the October
11, 2012 vaccination in her right shoulder. See Exhibit 2.
2. Chiropractic treatment records dated October 22, 2012, reflecting complaint
of right shoulder pain since receiving the October 11, 2012 flu shot. See
Exhibit 3 at 3. Subsequent records in this exhibit reflect regular treatment for
right shoulder symptoms.
3. Primary care records by Dr. William Nelson, dated October 22, 2012,
containing a history of “great problems with pain and swelling” in the
“posterior right arm” following a recent flu vaccination. See Exhibit 12 at 23.
The records note that Dr. Nelson’s physical examination revealed “a punctate
3By agreement of the parties, Mr. Milmoe sent a copy of e-mail containing the summary to the OSM staff
attorney managing this case for inclusion in the case file.
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lesion surrounded by contusion” at an “appropriate location for an injection,
over the lateral portion of the arm, but below the deltoid.” Id.
4. Neurology records dated December 18, 2012, containing a history of stiffness
and pain in the right arm soon after receiving the October 11, 2012 flu shot,
and petitioner’s presentation of right upper extremity pain, weakness, and
numbness at the appointment. See Exhibit 4 at 6-8.
5. Workers’ Compensation records reflecting petitioner’s claim for benefits for a
right shoulder injury allegedly caused by the October 11, 2012 flu vaccination.
See Exhibit 7.
6. Petitioner’s second affidavit wherein she reiterates that the vaccine was
administered to her right shoulder and states the reasons why the
immunization record “is mistaken.” See Exhibit 9.
The evidence against petitioner’s assertion that she was vaccinated in her right
arm consists of the following:
1. The immunization record, which indicates the vaccine was given in her left
deltoid. Exhibit 8.
III. Fact Ruling
After a discussion of the facts set forth above, the undersigned made an oral
ruling in petitioner’s favor, finding the totality of the evidence indicated petitioner
received the October 11, 2012 vaccination in her right shoulder. The undersigned noted
that the primary care records dated October 22, 2012, which documented a right-side
“punctate lesion surrounded by contusion,” were particularly strong evidence that the
vaccine was given in the right shoulder, and not in the left, as noted on the vaccine
record. Additionally, petitioner consistently reported to treatment providers that her
symptoms developed after the October 11, 2012 vaccination.
IV. Conclusion
At the conclusion of the conference, Mr. Milmoe requested a period of 30 days to
discuss the undersigned’s finding with respondent and to file a status report indicating
how she wishes to proceed. Petitioner agreed with this proposal. Additional deadlines
will be set thereafter.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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