Smith v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1435V
Filed: April 7, 2017
Unpublished
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JERALD SMITH, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (“Flu”) Vaccine; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
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Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner.
Lisa A. Watts, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On October 31, 2016, Jerald Smith (“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 alleged that he sustained a shoulder injury related
to vaccine administration (“SIRVA”) from an influenza (“flu”) vaccination he received on
January 8, 2016. The case was assigned to the Special Processing Unit (“SPU”) of the
Office of Special Masters.
On April 7, 2017, the undersigned issued a ruling on entitlement finding petitioner
entitled to compensation for SIRVA. On April 7, 2017, respondent filed a proffer on
award of compensation (“Proffer”) in his Rule 4(c) Report indicating petitioner should be
awarded $140,000.00. Rule 4(c) Rep. at 4-5. In the Proffer, respondent represented
that petitioner agrees with the proffered award. Id. Based on the record as a whole, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
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).
Pursuant to the terms stated in the Proffer, 3 the undersigned awards petitioner
a lump sum payment of $140,000.00 in the form of a check payable to petitioner,
Jerald Smith. This amount represents compensation for all damages that would be
available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
The Proffer is not attached to this decision because it was included in the Rule 4(c) Report, which
contains confidential medical information.
4
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.
2