N.Q. v. HHS - Influenza, shoulder injury related to vaccine administration (SIRVA) (2020)

Dania Pedraza, on behalf of her minor son N.Q., filed a petition on January 14, 2020, seeking compensation for a shoulder injury related to vaccine administration (SIRVA) allegedly sustained by N.Q. following an influenza vaccination on October 6, 2014. N.Q. was seven years old at the time of the vaccination.

Ms. Pedraza alleged that N.Q. developed shoulder problems within 48 hours of receiving the vaccine.

The petition was filed well beyond the statute of limitations. The case was before Special Master Christian J.

Moran. The respondent was the Secretary of Health and Human Services.

The public decision does not name petitioner's counsel for this filing, but Christopher Lee Phillippe of Christopher Lee Phillippe, PC, is listed as counsel for the petitioner. Jennifer L.

Reynaud of the United States Department of Justice represented the respondent. The Special Master reviewed the procedural history of a prior case, docketed as 17-384V, filed by N.Q.'s former attorney, Omar Rosales, on March 20, 2017.

In that prior case, the initial petition alleged that the flu vaccination caused an anxiety disorder and did not allege a shoulder injury. No exhibits were filed with the initial petition in 17-384V.

During a status conference on March 30, 2017, Special Master Hastings discussed with Mr. Rosales the need for an expert report for conditions not listed on the Vaccine Injury Table, which applied to the alleged anxiety disorder.

The case was stayed to allow counsel to investigate. An order on April 26, 2017, directed Mr.

Rosales to advance eight cases, including Ms. Pedraza's, within 60 days and to file amended petitions and all medical records for cases proceeding.

In a subsequent status conference on June 21, 2017, Special Master Hastings questioned the basis for a SIRVA claim, noting the lack of evidence in the medical records and the fact that SIRVA was not alleged in the original petition. Mr.

Rosales suggested discriminatory treatment, which Special Master Hastings rejected, emphasizing the need for proof that a vaccine caused an injury lasting six months or longer. Mr.

Rosales stated he would obtain expert reports. Ms.

Pedraza's counsel represented on June 26, 2017, that an expert report would be provided within 30 days if the court ordered it. On July 10, 2017, Ms.

Pedraza filed medical records and an amended petition alleging SIRVA and increased ADHD symptoms due to shoulder pain. Special Master Hastings ordered an expert report by August 11, 2017, stating the case would be dismissed if not filed.

On July 17, 2017, a report was obtained from Dr. Mark Levin, a board-certified internist and oncologist.

However, on August 14, 2017, Mr. Rosales filed a notice of voluntary dismissal for case 17-384V.

In the current case, filed January 14, 2020, with attorney Christopher Phillippe, Ms. Pedraza included Dr.

Levin's July 17, 2017 report as an exhibit. The petition requested equitable tolling, arguing that Special Master Hastings had previously required an expert report for a SIRVA claim.

Special Master Moran reviewed a similar case, Machuca v. Sec’y of Health & Human Servs., No. 20-18V, which was dismissed on July 17, 2020, for failure to establish diligence or extraordinary circumstances for equitable tolling.

In Machuca, the petitioner possessed an expert report for months before filing and did not establish grounds for equitable tolling or discriminatory treatment. Special Master Moran issued an order for Ms.

Pedraza to show cause why her case should not be dismissed. Ms.

Pedraza responded by arguing that the Secretary should file a motion to dismiss and that the show cause order reflected discriminatory treatment. Special Master Moran found these arguments unpersuasive, noting that Ms.

Pedraza cited no authority for the claim that enforcing statutes of limitations constitutes discrimination and did not present individualized arguments distinguishing her case from Machuca. The public decision does not describe the specific symptoms, onset, diagnostic tests, or treatments for N.Q.'s alleged shoulder injury or anxiety, beyond the general allegations of shoulder problems within 48 hours of vaccination and increased ADHD symptoms.

The decision also does not detail the specific findings or reasoning of Dr. Levin's report.

The case was dismissed because it was filed outside the statute of limitations, and equitable tolling was not deemed appropriate. The public decision does not mention any award amount or annuity terms.