           In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 14-843V
                                   Filed: December 15, 2014

****************************
NICOLE PREVITI,             *
                            *
                Petitioner, *                             Finding of fact; Proof of vaccination
v.                          *
                            *
SECRETARY OF HEALTH         *
AND HUMAN SERVICES,         *
                            *
                Respondent. *
                            *
****************************

William E. Cochran, Jr., Esq., Black McClaren Jones Ryland & Griffee, P.C., Memphis,
       TN, for petitioner.
Adriana Ruth Teitel, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

                                ORDER and RULING ON FACTS 1

Vowell, Special Master:

       On September 11, 2014, Nicole Previti [“petitioner”] filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq, [the “Vaccine Act” or “Program”]. Petitioner alleges she suffered
brachial neuritis following the administration of the tetanus, diphtheria, and acellular
pertussis [“TDaP”] vaccine on April 26, 2012. (See Petition at 1.) Petitioner alleges that
her injury is a Table injury, 2 alleging in the alternative that it was “caused-in-fact” by her
vaccination. (Id.) 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, it will be
posted on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In accordance with Vaccine Rule
18(b), petitioners have 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
 A “Table” injury is an injury listed on the Vaccine Injury Table, 42 C.F.R. § 100.3, corresponding to the
vaccine received within the time frame specified.
                                     I. Procedural History

       A telephonic status conference was held on October 9, 2014. William Cochran
appeared on behalf of petitioner, and Adriana Teitel appeared on behalf of respondent.
(See Order, issued October 9, 2014 (ECF No. 10), at 1.) Daniel Horner appeared on
my behalf as the OSM staff attorney managing this case. During the call, respondent’s
counsel noted that respondent had not at that time completed a review of this case, but
noted concern regarding the lack of documentation in the medical records indicating in
which arm the implicated vaccine was administered. (Id.) Petitioner filed records in this
case showing that the TDaP vaccine had been administered during the course of her
hospitalization, but these records did not identify the injection site. (Ex. 1, p. 115.)
Petitioner was given 30 days, until November 10, 2014, to supplement the record
regarding further proof of vaccination and respondent was ordered to file a status report
30 days after that, no later than December 10, 2014, indicating respondent’s position
regarding settlement negotiations. 3 (Id.)

        On November 26, 2014, petitioner filed an affidavit indicating that the hospital
where she received the implicated vaccination kept no further proof of vaccination
beyond what had already been filed. (See Ex. 14, at 1.) In that same affidavit, petitioner
described the circumstances of her vaccination in greater detail and explained the basis
of her recollection. (Ex. 14, pp. 2-3.) Petitioner also filed two photographs in further
corroboration of her account. (Exs. 15, 16.) Petitioner also referred back to a previously
filed affidavit and photograph that she indicated further support her recollection. (See
Exs. 11, 12.)

       On December 8, 2014, respondent filed a status report indicating that
“respondent’s position on how she wishes to proceed is dependent on the Court’s
factual finding regarding in which shoulder petitioner’s April 26, 2012 Tdap vaccination
was administered. If it is determined that the vaccine was administered in her right
shoulder, respondent believes this case would be appropriate for settlement
negotiations.” (See ECF No. 14, p. 1.) Respondent’s status report, however, did not
discuss the statutory qualification and aids to interpretation which indicate that with
regard to brachial neuritis “[t]he neuritis, or plexopathy, may be present on the same
side as or the opposite side of the injection.” (42 U.S.C. § 300aa-14(b) as amended by
42 CFR § 100.3.)

        In an order dated December 9, 2014, I indicated that I was prepared to make a
fact finding if necessary, but required respondent to make a motion for a finding of fact
and to “explicitly address the need for such ruling” in light of the language of the
qualification and aids to interpretation. (See Order, issued December 9, 2014 (ECF No.


3
  A motion for an enlargement of time was subsequently filed on November 10, 2014, by petitioner (ECF
No. 11), and granted on November 12, 2014. (See Order, issued November 12, 2014 (Non-PDF).)
Petitioner’s deadline was extended to December 10, 2014, and respondent’s deadline to January 9, 2015.
(Id.)
15), p. 2.) On December 10, 2014, respondent made a motion “for a factual finding
regarding administration of Petitioner’s Tdap vaccine.”4 (ECF No. 16.)

        Respondent’s motion explained that the factual ruling indicating in which arm
petitioner received her vaccination is necessary, because the record includes
statements by petitioner indicating that she experienced “bearable” pain soon after the
vaccination. (See ECF No. 16, p. 3.) In respondent’s view of the case, this “bearable”
pain might be attributed to a local site reaction if the vaccine is determined to have been
given in the right shoulder. (ECF No. 16, pp. 3-4.) Absent such a finding, respondent
argues that petitioner’s initial “bearable” right shoulder pain would not be vaccine-
caused. According to respondent, this distinction changes the calculus of onset and
therefore bears on the likelihood that petitioner’s injury was vaccine caused. (Id.) In
light of respondent’s explanation, I conclude that a fact ruling resolving the
administration site of the implicated vaccination is appropriate. 5

                                            II. Factual Finding

        On April 24, 2012, Petitioner was admitted to the Oakwood South Shore Medical
Center for a cesarean section. (Ex. 1, p. 96.) Petitioner remained hospitalized until
being discharged on April 26, 2012. On April 26, 2012, prior to leaving the hospital,
petitioner was administered a TDaP vaccination. (Ex. 1, p. 115.) The record indicates
that the vaccine was administered as scheduled at 12:28 pm 6, but does not indicate the
injection site. (Id.) Petitioner has averred, however, that she received the vaccination in
her right shoulder. (Ex. 12, p. 1.) Petitioner also averred that she contacted Oakwood
South Shore Medical Center twice, in August and October or 2014, to obtain any
additional record of her TDaP vaccination. (Ex. 14, p. 1.) Petitioner swears in her
affidavit not only that the hospital denied having any additional records, but also that
she was specifically told that the hospital did not document in which arm it administered
her vaccination. (Id.)

       Significantly, petitioner also submitted photographic evidence tending to show
that she likely received her vaccination in her right shoulder. Specifically, petitioner filed
as Exhibit 11, pictures of her right arm illustrating a “pea sized” lump which she swears,
in an affidavit filed as Exhibit 12, developed at the site of vaccine administration. (Ex 12,

4
  In her motion, respondent indicates that she is “renewing her request for a factual finding.” (ECF No. 16,
p. 4.) Actually, no request for a factual finding was explicitly made in the status report. The status report
advised the court that respondent’s position is dependent upon a fact finding, but did not indicate that a
fact finding was requested.
5
  I stress that this ruling pertains only to the question of whether petitioner’s vaccination was administered
in her right arm and does not address the onset of her injury. Respondent’s theory that petitioner’s initial
shoulder pain was a vaccine site reaction is discussed only because it substantiates respondent’s request
for the fact ruling in this case at this time, despite the fact that petitioner is alleging brachial neuritis. I am
not deciding whether the location of petitioner’s vaccination bears the significance respondent suggests.
6
 Respondent contends the administration was likely earlier in the day as petitioner signed her discharge
papers at 12:15pm that day. (See ECF No. 16, p. 2, citing Ex. 1, p. 101.) This ruling does not address the
specific timing of Petitioner’s TDaP vaccination.
p. 1.) In addition, petitioner also filed a photograph of herself in her hospital bed. (Ex.
15.) In this picture, petitioner’s left arm is clearly visible, and, as petitioner notes in her
accompanying affidavit, there is no visible sign of any vaccination into her left arm. (Ex.
14, p. 2.) Although the photograph is not date stamped, petitioner explained that she
knows the photograph to have been taken post-vaccination, because she recalls that
she received the vaccination prior to showering that day and is wearing the clothing she
recalls having put on for the first time after her shower. (Id.)

       Moreover, petitioner also persuasively bolsters her recollection by recalling the
additional detail that the door to the hospital room was on the right side of her bed and
her baby’s bassinet adjacent to the left side of her bed, away from the door. (Id.) She
argues it is unlikely that hospital staff would have walked around the bed only to have to
reach over the bassinet to administer the vaccination. (Id.)

       In the absence of evidence to the contrary, and in light of the significant
detail provided by petitioner, I find that petitioner received a TDaP vaccine in her
right shoulder on April 26, 2012.

                                          III. Order

        In her status report of December 8, 2014, respondent’s counsel indicated that “[i]f
it is determined that the vaccine was administered in her right shoulder, respondent
believes this case would be appropriate for settlement negotiations.” (ECF No. 14, p.
1.) That finding has been made. Therefore, the parties shall file a joint status
report by no later than January 16, 2015, updating the court on the progress of
their settlement negotiations. The status report shall indicate if a demand has
been served, and if not, when petitioner expects to serve a demand.

IT IS SO ORDERED.

                                                   s/Denise K. Vowell
                                                   Denise K. Vowell
                                                   Chief Special Master
