          In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 16-1458V
                                      Filed: October 4, 2017
                                          UNPUBLISHED


    DENISE GORING,
                                                               Special Processing Unit (SPU);
                         Petitioner,                           Motion for Summary Judgment;
    v.                                                         Influenza (Flu) Vaccine; Tetanus
                                                               diphtheria acellular-pertussis (Tdap)
    SECRETARY OF HEALTH AND                                    Vaccine; Shingles (Zoster) Vaccine;
    HUMAN SERVICES,                                            Shoulder Injury Related to Vaccine
                                                               Administration (SIRVA)
                         Respondent.


Isaiah R. Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Voris E. Johnson, U.S. Department of Justice, Washington, DC, for respondent.

         ORDER DENYING PETITIONER’S MOTION FOR SUMMARY JUDGMENT 1

Dorsey, Chief Special Master:

I.        Relevant Background

       On November 4, 2016, petitioner 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 (“SIRVA”) after receiving an influenza (“flu”) vaccine, a tetanus-diphtheria
acellular-pertussis (“Tdap”) vaccine, and a shingles (“Zoster”) vaccine. 3 Petition at 1-5.


1 Because this order 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.

2National 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).
3   The Zoster vaccine is not covered under the Vaccine Act.
The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
Masters.

      The initial status conference was held on January 10, 2017, after which
respondent was ordered to file a status report regarding the completeness of the
records, and if possible, his litigation position in this case. Sched. Order, issued Jan.
10, 2017, ECF No. 11.

      On February 24, 2017, respondent timely filed a status report stating that he had
completed a review of the submitted materials and identified certain missing records,
which were pertinent to determining his position in the case. Status Report, filed Feb.
24, 2017, ECF No. 13.

       That same day, petitioner filed a status report addressing each of respondent’s
requests, stating that the records either did not exist or had already been filed. The
status report also stated that petitioner had sent respondent a demand to initiate
settlement discussions. Status Report, filed Feb. 24, 2017, ECF No. 14.

        Respondent requested a brief period to look again at the medical records in view
of petitioner’s statements, and to thereafter file a status report proposing possible next
steps. Sched. Order, issued Feb. 27, 2017, ECF No. 15.

       On March 14, 2017, respondent filed a status report stating that he still had
questions about the explanations petitioner provided for some of the missing records,
but was willing to consider petitioner’s settlement demand based on the current record.
Respondent reserved the right to revisit the issue of the missing records in the event the
parties failed to reach an agreement. Status Report, filed Mar. 14, 2017, ECF No. 16.

       On July 20, 2017, after a period of settlement discussions, petitioner filed a
status report stating that the parties had been unable to resolve the matter informally,
and requesting a deadline be set for respondent to file a Rule 4(c) Report. Petitioner
stated that she intended, in the interim, to pursue additional evidence on the specific
factual issues raised by respondent during the parties’ negotiations. Status Report, filed
July 20, 2017, ECF No. 25.

       On August 10, 2017, respondent filed his Rule 4(c) Report recommending
entitlement be denied. Rule 4(c) Report (“Report”), filed Aug. 10, 2017, ECF No. 29.
Respondent found petitioner’s claim problematic in several respects, and raised at least
two factual issues: the injection site of each vaccine, and the onset of petitioner’s pain.
Respondent also identified a possible alternative cause. Report at 8-9.

      On August 28, 2017, petitioner filed her motion for summary judgment. 4 Motion
for Summary Judgment, filed Aug. 28, 2017, ECF No. 30. A response and reply were


4Due to petitioner’s motion, a status conference scheduled for that same day to discuss possible next
steps was cancelled.

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filed in due course. Response, filed Aug. 30, 2017, ECF No. 31; Reply, filed Sept. 4,
2017, ECF No. 32.

II.    Applicable Law and Discussion

        Under Vaccine Rule 8(d), a special master “may decide a case on the basis of
written submissions without conducting an evidentiary hearing. Submissions may
include a motion for summary judgment, in which event the procedures set forth in
RCFC 56 will apply.” Under Rule 56 of the Rules of the United States Court of Federal
Claims (“RCFC”), “[s]ummary judgment is appropriate only when the pleadings raise no
genuine dispute as to any material fact and as a matter of law the movant is entitled to
judgment.” Dolney v. Sec’ y of Health & Human Servs., 23 Cl. Ct. 337, 344 (1991)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)), aff’d, 950 F.2d 720
(per curiam). “The moving party bears the burden of demonstrating an absence of
evidence that may support any genuine issue of material fact.” Id. (citations omitted).
“There is no genuine issue of material fact where the evidence presented is insufficient
to permit a reasonable factfinder to find in favor of the nonmoving party.” Jay v. Se c’ y
of Health & Human Servs., 998 F.2d 979, 982-83 (Fed. Cir. 1992) (citing Anderson, 477
U.S. at 249).

        The undersigned has reviewed petitioner’s motion for summary judgment, as well
as the response and reply, and all of the evidence filed to date. The undersigned fully
agrees with respondent that there are genuine issues of material fact, including whether
petitioner received a covered vaccine in her left shoulder; the onset of her symptoms;
and how her lipoma is related to her symptoms, if at all. Petitioner’s arguments, most of
which are policy-oriented, are neither amenable to summary judgment nor relevant to
the undersigned’s determination of whether petitioner is entitled to vaccine injury
compensation. Petitioner’s res ipsa loquitur argument concerning the vaccine record is
also not appropriate for summary judgment.

III.   Conclusion

       Because there are genuine issues of material fact in this case, petitioner’s motion
for summary judgment is DENIED.

       A separate scheduling order will follow.

IT IS SO ORDERED.

                                  s/Nora Beth Dorsey
                                  Nora Beth Dorsey
                                  Chief Special Master




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