          In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 14-1212V
                                      Filed: April 27, 2016

****************************
ALICIA SKINNER-SMITH,       *
                            *
                Petitioner  *                             Finding of Facts; Site of Vaccination;
v.                          *                             Special Processing Unit (“SPU”)
                            *
SECRETARY OF HEALTH         *
AND HUMAN SERVICES,         *
                            *
                Respondent. *
                            *
****************************

Richard Gage, Richard Gage, PC, Cheyenne, WY for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.

                                         RULING ON FACTS1

        On December 17, 2014, Alicia Skinner-Smith (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, §300aa-10, et seq.,2 (the “Vaccine Act” or “Program”). The petition alleges
that following the February 6, 2012 administration of her Tetanus, diphtheria, acellular
pertussis (“Tdap”) vaccination, petitioner suffered an “abscess, pain, and related
injuries.” Petition at 1, ¶4. The case was assigned to the Special Processing Unit
(“SPU”). The issue currently before the undersigned is the site of petitioner’s February
6, 2012 Tdap vaccination as the record contains conflicting evidence. After a review of
the entire record the undersigned finds petitioner received her February 6, 2012 Tdap
vaccination in the left dorsal gluteal muscle.


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  Because this unpublished ruling contains a reasoned explanation for the action in this case, the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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
I.      Procedural History

       An initial status conference was held with the staff attorney managing this case
on January 30, 2015. During the status conference, respondent’s counsel indicated that
a discrepancy exists in the record as to the anatomical location or site of petitioner’s
February 6, 2012 Tdap vaccination. Scheduling Order, dated Feb. 2, 2015. The
undersigned notes that a contemporaneous record from Ocshner Medical Center
(“OMC”) indicates that petitioner received her vaccination in her left deltoid (Pet. Ex. 1 at
685), however in petitioner’s subsequent treatment records she indicates the
vaccination was administered in her left dorsal gluteal region (see infra at 3-4).

         Thereafter, petitioner was ordered to file additional evidence regarding the site
of her vaccination. See Scheduling Orders, dated Feb. 2, 2015, March 18, 2015, and
April 23, 2015. On March 26, 2015, petitioner’s counsel filed a Memorandum Regarding
Vaccination Records (“Petitioner’s Memo” or “Pet. Memo”) and a supplemental affidavit
from petitioner. In addition to providing numerous citations in subsequent treatment
records noting her vaccination was administered in her left gluteal region, petitioner
pointed to a contemporaneous record from OMC documenting her vaccination site as
“(L)DG.” Pet. Memo, filed March 26, 2015, at 1-2. However, petitioner was unable
provide any additional evidence from OMC regarding the site of her vaccination, or the
meaning of “(L)DG,” even after attempting to obtain the information from OMC via a
subpoena. See Scheduling Order, dated July 22, 2015; Order, dated Aug. 4, 2015;
Status Report, filed Sept. 15, 2015; Status Report, filed Sept. 28, 2015; Status Report,
filed Nov. 5, 2015.

        The undersigned convened a status conference on November 5, 2015 and made
the preliminary finding that petitioner’s February 6, 2012 Tdap vaccination was
administered in her left buttock based on the record as a whole and in particular the
citations referenced in Petitioner’s Memo. Scheduling Order, dated Nov. 9, 2015, at 2.
Subsequently respondent contacted the court and requested an opportunity to obtain
additional information from OMC before the undersigned issued her Fact Ruling. Id.
Thereafter, respondent served a subpoena upon OMC and obtained additional
information from the vaccine administrator. Resp. Ex. B, filed Feb. 16, 2016. OMC
consulted with the author of the note, Mary Ann Le, R.N., indicating that petitioner
received her vaccination at “(L)DG.” Ms. Le stated (L)DG is an abbreviation for “left
dorsal gluteal (muscle).”3 Resp. Ex. B at 1. Ms. Le “does not recall the treatment in
question, [and] cannot say [for certain] in what part of the patient's body the vaccine was
administered.” Id. at 2.

       Respondent also filed a response to the undersigned’s preliminary findings of
fact on February 16, 2016 indicating that the issue of where petitioner received her
February 6, 2012 vaccination is now ripe for the undersigned’s ruling. Resp. Response,
filed Feb. 16, 2016, at 5. Petitioner filed no reply to respondent’s response.

3
 Ms. Le indicated that “in light of other conflicting information in Ms. Skinner-Smith's chart as to the
administration route and due to the time which has elapsed since the relevant treatment, she is not
certain what she meant in this particular instance.” Resp. Ex. B at 1.

                                                       2
   II.      Finding of Fact

      Based upon the record as a whole, and specifically the evidence described
below, the undersigned finds that the site of petitioner’s February 6, 2012 Tdap
vaccination was her left dorsal gluteal muscle.

      The undersigned finds petitioner’s medical history regarding the site of her
vaccination is consistent with the following chronology and citations provided in her
medical records as set forth in Petitioner’s Memo:

         February 6, 2012. Ex. 1 pg. 843. Site given (L)DG.

         February 6, 2012. Ex. 1 pg. 685. Left deltoid.

         February 9, 2012. Ex. 1 pg. 441. “She complains of left hip pain and lower
         back pain after getting a tetanus injection in her left hip.”

         February 13, 2012. Ex. 1 pg. 439. “Left buttock abscess/ cellulitis that
         began 1 day after receiving tetanus shot.”

         February 24, 2012. Ex. 1 pg. 661. “46 y.o. female had tetanus shot in left
         buttock 2/6/12 and then developed an abscess at the site.”

         February 27, 2012. Ex. 1 pg. 675. “Patient received a tetanus shot in her
         left buttock area on 2/6.”

         February 27, 2012. Ex. 1 pg. 680. “Pt with hx of getting a t-dap on Feb 6th
         because of a burn. It was given in the left buttock region.”

         June 27, 2012. Ex. 1 pg. 415. “Impression: Arthralgias. Symptoms began
         after tetanus shot which was associated with cellulitis of buttocks.”

         August 23, 2012. Ex. 1 pg. 22. “Patient complains of intermittent pain in
         her left buttocks, leg and foot since getting a tetanus injection.”

         September 21, 2012. Ex. 6 pg. 1. “She dated the beginning of symptoms
         to be associated with an injection of Tetanus administered in the buttock
         of the left leg.”

         September 21, 2012. Ex. 6 pg. 6. “She presents with leg pain and swelling
         in legs after being given a tetanus injection in buttocks instead of deltoid...”




                                                3
          February 7, 2013. Ex. 3 pg. 11. “Visit for: Last year (feb.6, 2012) - see
          record from Ochsner: received T-dap to left buttocks due to er visit with
          burn to rt upper ext.”

          July 15, 2013. Ex. 1 pg. 168. “Last February she reports having a tetanus
          shot to the left gluteal region...”

Pet. Memo at 1-2.

       The undersigned further finds that “(L)DG” as referenced in petitioner’s Exhibit 1
at 843, means the “left dorsal gluteal (muscle).” Resp. Ex. B at 1.

   III.      Discussion

        After a complete review of the entire record, and in particular the evidence cited
above, the undersigned finds that preponderant evidence supports a finding that the site
of petitioner’s February 6, 2012 Tdap vaccination was her left dorsal gluteal muscle.
The undersigned makes this finding notwithstanding the single notation that petitioner
received the vaccine in her left deltoid (Ex. 1 at 685) and Ms. Le’s inability to say
definitively in what part of the body petitioner’s vaccine was administered.

   IV.       Conclusion

      For all these reasons, the undersigned finds that the preponderance of the
evidence demonstrates Alicia Skinner-Smith’s February 6, 2012 Tdap vaccination was
administered in her left dorsal gluteal muscle.

          Respondent shall file her Rule 4(c) Report by no later than June 13, 2016.


IT IS SO ORDERED.

                                                   s/ Nora Beth Dorsey
                                                   Nora Beth Dorsey
                                                   Chief Special Master




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