Oliver v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0877V
UNPUBLISHED
WANDA OLIVER, Chief Special Master Corcoran
Petitioner,
v. Filed: December 22, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Damages Decision on Proffer;
Concession; Table Injury; Influenza
Respondent. (Flu); Shoulder Injury Related to
Vaccine Administration (SIRVA).
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Jeremy Fugate, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON DAMAGES1
On July 17, 2020, Wanda Oliver 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 alleged that she suffered a right shoulder injury related to
vaccine administration (SIRVA) after an influenza (“flu”) vaccine received on October 23,
2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On December 13, 2021, I issued a ruling that Petitioner was entitled to
compensation for her SIRVA. ECF No. 31. On December 20, 2021, Respondent filed a
proffer on an award of compensation, to which Petitioner agrees. ECF No. 33 (attached
1
Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required
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). This means the Ruling will be available to anyone with access to the internet. 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, I agree that
the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
hereto as Exhibit A). Based on the record as a whole, I find that Petitioner is entitled to
an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $71,784.21 (representing $70,000.00 for pain and suffering, and
$1,784.21 for past unreimbursable expenses). This amount represents compensation
for all damages that would be available under Section 15(a).
The Clerk of the Court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
WANDA OLIVER, *
*
Petitioner, * No. 20-0877V
* Chief Special Master Corcoran
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On July 17, 2020, Wanda Oliver (“petitioner”) filed a Petition for Compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to-
34 (“Vaccine Act” or “Act”), as amended. Petitioner alleges that she received an influenza
(“flu”) vaccine on October 23, 2018, and that she subsequently suffered a right shoulder injury
related to the vaccine administration (“SIRVA”) that meets the requirements of the Vaccine
Injury Table for flu vaccine. Petition at 1. On December 13, 2021, the Secretary of Health and
Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate
for compensation under the terms of the Act for a SIRVA Table injury, and on December 13,
2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to
compensation. ECF No. 30; ECF No. 31.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $70,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $1,784.21. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following 1: a lump sum payment of $71,784.21, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Wanda Oliver: $71,784.21.
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
1 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future lost earnings
and future pain and suffering.
2
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
s/ JEREMY C. FUGATE
JEREMY C. FUGATE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146 Benjamin Franklin Station
Washington D.C. 20044-0146
Tel: (202) 598-3831
Dated: December 20, 2021 Jeremy.Fugate2@usdoj.gov
3