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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0763V
UNPUBLISHED
J.S., Chief Special Master Corcoran
Petitioner, Filed: January 24, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On June 24, 2020, J.S. 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 he suffered a left shoulder injury as a result of an influenza
(“flu”) vaccine he received on October 4, 2018. Petition at ¶¶ 5. The case was assigned
to the Special Processing Unit of the Office of Special Masters.
On October 26, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for a Table SIRVA. On January 24, 2022, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $100,463.05,
representing $97,500.00 for actual pain and suffering and $2,963.05 in past
unreimbursable expenses. Proffer at II. In the Proffer, Respondent represented that
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 Decision 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.
2National 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).
Petitioner agrees with the proffered award. Id. 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 $100,463.05 in the form of a check payable to Petitioner. 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
____________________________________
)
J S , )
Petitioner, )
) No. 20-763V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On June 24, 2020, J S (petitioner) filed a petition for compensation under the
National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”),
42 U.S.C. §§ 300aa-1 to -34. Petitioner alleged that he suffered a Shoulder Injury Related to
Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to
him on October 4, 2018. Petition at 1, 5. On October 25, 2021, the Secretary of Health and
Human Services (“respondent”) filed a Rule 4(c) Report recommending that compensation be
awarded. ECF No. 27. On October 26, 2021, the Chief Special Master issued a Ruling on
Entitlement finding petitioner entitled to compensation. ECF No. 28.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $97,500.00 in actual pain and
suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents his expenditure for past unreimbursable
expenses related to his vaccine-related injury. Respondent proffers that petitioner should be
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awarded past unreimbursable expenses in the amount of $2,963.05, as provided under the
Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). 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: a lump sum payment of $100,463.05, representing
compensation for actual pain and suffering ($97,500.00) and past unreimbursable expenses
($2,963.05) in the form of a check payable to petitioner, J S Petitioner agrees.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, J S $ 100,463.05
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
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/s/ Kimberly S. Davey
KIMBERLY S. DAVEY
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) 307-1815
Kimberly.Davey@usdoj.gov
DATED: January 24, 2022
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