                  In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                          Filed: March 22, 2019

* * * * * *                *     *   *   *    *    *   *
JAMES BLUTE,                                           *                 UNPUBLISHED
                                                       *
                   Petitioner,                         *                 No. 17-1381V
                                                       *
v.                                                     *                 Special Master Gowen
                                                       *
SECRETARY OF HEALTH                                    *                 Finding of Fact; Influenza (Flu)
AND HUMAN SERVICES,                                    *                 Vaccine; Intradermal;
                                                       *                 Shoulder Injury.
                   Respondent.                         *
*    * *      *    * * * *           *   *    *    *   *

Isaiah R. Kalinowski, Maglio, Christopher & Toale, PA, Washington, DC, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.

                                                  FACT RULING1

        On September 29, 2017, James Blute (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner
alleges that he suffered a shoulder injury resulting from an influenza (“flu”) vaccination which
he received on October 26, 2015. Id. at ¶ 1. For the foregoing reasons, I find that the
vaccination was administered by intradermal injection, not intramuscular injection.

         I.        Procedural History

        This claim was originally assigned to the Office of Special Masters’ Special Processing
Unit (“SPU”). Following an initial status conference on November 13, 2017, respondent was
directed to review the records and provide his initial position on the case. Order (ECF No. 10).
Respondent received several extensions of time. Then, on June 4, 2018, respondent filed a status

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the
decision.” Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
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).
report providing that the medical records filed suggested that petitioner received an intradermal
vaccination. Status Report (ECF No. 20), see also Pet. Ex. 1 at 3. Respondent requested that
petitioner’s counsel collect and file additional information on this issue. Status Report (ECF No.
20). On July 10, 2018, petitioner filed an additional medical record which also provided that he
received an intradermal vaccination. Pet. Ex. 13.

        On August 28, 2018, respondent filed a Rule 4(c) report recommending against
compensation. In part, respondent contended that petitioner cannot establish that he suffered a
SIRVA injury within the meaning of the Vaccine Injury Table, because petitioner received an
intradermal vaccine. Respondent’s Report (ECF No. 26) at 4-5. Following another status
conference in the SPU, the case was transferred to the undersigned for all further proceedings.
Order Reassigning Case filed October 10, 2018 (ECF No. 27).

        On November 1, 2018, I held my initial status conference in this case. Mr. Isaiah
Kalinowski appeared on behalf of petitioner. Ms. Debra Begley appeared on behalf of
respondent. Mr. Kalinowski provided that petitioner believes that he did not receive an
intradermal vaccine and that the medical records filed to date were incorrect. I directed both
parties’ counsel to work together on preparing written questions to the medical practice and
obtaining written answers.

         After providing several updates via status reports, on February 13, 2019, petitioner filed
additional records. Most relevant to the instant matter, petitioner filed an affidavit with his
recollections about receiving the vaccination, Pet. Ex. 15, and correspondence from the custodian
of records for the vaccination, Pet. Ex. 16. On February 28, 2019, petitioner filed a status report
providing that “at this juncture, it appears to petitioner that all available evidence regarding the
vaccination has been filed into the record.” Status Report (ECF No. 37). “Petitioner propose[d]
to file a Motion for Finding of Fact by 29 March 2019. In the alternative, petitioner submits to
another status conference or other additional proceedings as seems best [to, sic] the Court.” Id.

        On March 19, 2019, I convened another status conference in the case. The same
attorneys appeared. Mr. Kalinowski confirmed that all available evidence on the vaccine’s type
and method of administration had been filed. Mr. Kalinowski requested my finding of fact on
that issue. Neither petitioner or respondent raised any specific arguments or requested additional
development of this issue. Accordingly, it is ripe for adjudication.

       II.      Finding of Fact

       I hereby make the following finding after a complete review of the record, including but
not limited to all medical records, affidavits, and other evidence filed by petitioner, as well as
respondent’s Rule 4(c) Report. I found particularly relevant the following evidence:

       •     Petitioner avers: “I can say with certainty that [a medical assistant trainee] gave me
             the kind of vaccination that is injected into the muscle of the shoulder, not one with a
             short needle that was just injected into the skin.” Pet. Ex. 15 at ¶ 7.




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       •      However, on October 26, 2015, Dr. Denis Y. Lin at Lung Specialists Merrimack
              Valley recorded that during an appointment that same day, petitioner received
              “Influenza ID (IIV4) PF 18 64 LSMV: 0.1 mL given . . . . on Right Deltoid.” Pet. Ex.
              1 at 3.

       •      The same medical practice’s “Patient Vaccine Administration Record” provides that
              on October 26, 2015, petitioner received “Influenza ID (IV4) PF 18 64 LSMV,” 0.1
              mL, in the right deltoid. This record provides the vaccine’s manufacturer, lot
              number, and expiration date. Pet. Ex. 13.

       •      The same medical practice provided in writing, in response to counsel’s inquiry, that
              their documentation showed that an ID vaccination was given to petitioner. Pet. Ex.
              16 at 2, 6.

       •      The medical practice also supplied the medical assistant’s tracking notebook with the
              actual sticker of the vaccine given to petitioner. The sticker has the date, lot number,
              and specifies ID (not IM). Pet. Ex. 16 at 1, 6.

        Based upon the foregoing, in particular the medical practice’s documentary evidence of
the sticker from the actual intradermal vaccination, I find that on October 26, 2015, petitioner
received a flu vaccination that was administered by intradermal injection, not intramuscular
injection.

       III.      Scheduling Order

       In accordance with the above and my discussion with counsel during the status
conference, the following is hereby ORDERED:

       1) Within 60 days, no later than Tuesday, May 21, 2019, petitioner shall file an expert
          report.

       2) Within 60 days thereafter, respondent shall file a responsive expert report.

       IT IS SO ORDERED.                                        s/Thomas L. Gowen
                                                                Thomas L. Gowen
                                                                Special Master




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