# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 314 V

UNPUBLISHED

RONDA BRUM SMITH

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: July 6, 2022

Special Processing Unit (SPU); Ruling on Entitlement; Concession; Table Injury; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA , for Petitioner

.

Jennifer Leigh Reynaud , U. S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT 1

On February 28, 2019, Ronda Smith 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 a tetanus diphtheria acellular pertussis vaccine she
received on February 29, 2016, caused her to suffer the Table injury of “Shou lder Injury
Related to Vaccine Administration” (“SIRVA”). Petition at 1, ECF No. 1; Amended Petition
filed July 22, 2019, ECF No. 12. Petitioner further alleges that she suffered the residual
effects of her injury for more than six months, and that there h as been no prior civil action

1 Because this unpublished R uling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 R uling 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 a n 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

. He reinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subpara graph of 42 U.S.C. § 300aa (2012 ).as a result of her injury. ECF 12 at ¶¶ 26, 29. The case was assigned to the Special
Processing Unit of the Office of Special Masters.

On April 26, 2022, I issued a Fact Ruling finding “the onset of Petitioner’s SIRVA

more l ikely than not occurred within 48 hours of vaccination” as set forth in the Vaccine
Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42
C.F.R. § 100.3(a) I.C & II.C. (Tdap vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (req uired
onset for pain listed in the QAI). ECF No. 40 at 2. In reaction, on July 5, 2022, Respondent
filed an Amended Rule 4(c) Report indicating that ( while preserving his right to appeal my

Fact Ruling ) he agrees in light of the Ruling that Petitioner has established the elements

of a SIRVA Table claim . Respondent’s Amended Rule 4(c) Report at 2 , ECF No. 44

.

Specifically, Respondent stated as follows:

In light of the Chief Special Master’s Fact Ruling, and medical record

evidence s ubmitted in this case, DICP has concluded that petitioner
suffered SIRVA as defined by the Vaccine Injury Table. Specifically,
petitioner had no recent history of pain, inflammation, or dysfunction of her
left shoulder; the onset of pain occurred within 48 hours after receipt of an

intramuscular vaccination; 3 the pain was limited to the shoulder in which the
vaccine was administered; and no other condition or abnormality, such as
brachial neuritis, has been identified to explain petitioner’s right shoulder
pain. 42 C.F.R. §§ 100.3(a), (c)(10). In addition, petitioner suffered the
residual effects of her condition for more than six months. 42 U.S.C. §

300aa

- 11(c)(1)(D)(i). Therefore, 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. 42 U.S.C. § 300aa

- 13.

Id. at 7

- 8

.

In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation. A Damages Order will issue.

3 Respondent notes: “ T his criterion is met pursuant to the Chief Special Master’s April 26, 2022 Fact Ruling, and respondent does not waive his right to a potential appeal of this issue. In addition, nothing in this Rule 4(c) Report constitutes a waiver of any defenses that res pondent may assert in the damages phase.” Respondent’s Report at 8 n. 2.IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran Chief Special Master