Barclay v. Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: January 22, 2025
• Docket: 24-0192V
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-192V

BERT BARCLAY, Chief Special Master Corcoran

Petitioner, Filed: December 20, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Michael Joseph Lang, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT 1

On February 8, 2024, Bert Barclay 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 he suffered a Table claim – brachial neuritis (“BN”) as the result of a tetanus, diphtheria, and acellular pertussis(“Tdap”) vaccination he received on May 6, 2022. Petition at 1. Petitioner further alleges that he suffered the residual effects of his injury for more than six months, and that there has been no prior award or settlement of a civil action on his behalf as a result of his injury. Petition at ¶¶ 11-12. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). On December 17, 2024, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent states that he

has concluded that petitioner’s alleged injury is consistent with BN as defined by the Vaccine Injury Table. Specifically, the medical evidence demonstrates that petitioner’s brachial neuritis first manifested between two and twenty-eight days of his receipt of the Tdap vaccine, petitioner received a clinical diagnosis of brachial plexopathy and Parsonage-Turner syndrome, the findings of petitioner’s EMG were consistent with brachial neuritis, and no other condition or abnormality has been identified to explain petitioner’s symptoms. See 42 C.F.R. § 100.3 (a), (c)(6). Additionally, his brachial neuritis and its sequela, including pain and weakness, persisted for greater than six months.

Id. at 11-12. Respondent further agrees that

[w]ith respect to other statutory and jurisdictional issues, the records show that the case was timely filed, that the vaccine was received in the United States, and that petitioner satisfies the statutory severity requirement by suffering the residual effects or complications of his injury for more than six months after vaccine administration. See 42 U.S.C. §§ 300aa-11(c)(1)(D)(i). Petitioner avers that neither he nor any other party, has initiated a civil action to recover for his vaccine-related injury. Petition at 4. Petitioner also affirms that he has not received any compensation in the form of an award or settlement for his injury. Id.

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