Brueggeman v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1643V UNPUBLISHED DENISE BRUEGGEMAN, Chief Special Master Corcoran Petitioner, Filed: February 19, 2021 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Causation-In-Fact; Influenza (Flu) Vaccine; Shoulder Injury Related to Respondent. Vaccine Administration (SIRVA) Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner. Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 On October 23, 2019, Denise Brueggeman 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 shoulder injury related to vaccine administration, which meets the Table definition for SIRVA, after receiving an influenza vaccine on September 28, 2018. Petition at 1, ¶¶ 2, 10. Petitioner further alleges that she received the vaccination in the United States, suffered the residual effects of her SIRVA for more than six months, and that she has not filed a civil action or received an award or settlement for her SIRVA, alleged as vaccine-caused. Id. at ¶¶ 2, 10-12. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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. 2 National 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 February 18, 2021, Respondent filed his Rule 4(c) Report3 in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent “has concluded that [P]etitioner’s alleged injury is consistent with SIRVA and was caused-in-fact by the administration of a flu vaccine on September 28, 2018.” Id. at 4. Respondent further agrees that “based on the record as it now stands, [P]etitioner has satisfied all legal prerequisites for compensation under the Act.[4]” Rule 4 Report at 4. 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 Respondent filed a combined Rule 4 Report and Proffer. ECF No. 28. A Decision Awarding Damages based upon the Proffer also will be issued today. 4 Respondent notes that I issued a Fact Ruling finding Petitioner had met the statutory six-month requirement. Rule 4 Report at 4 n.1; see Section 11(c)(1)(D)(i). 2