Stewart v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1630V
Filed: November 6, 2019
UNPUBLISHED
GLENDA LEE STEWART,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Corcoran, Chief Special Master:
On October 23, 2018, 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 alleges that she suffered Shoulder Injury Related to Vaccine
Administration (SIRVA) after receiving the influenza vaccine on November 27, 2017.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On October 18, 2019, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On November 6, 2019, respondent filed a proffer
on award of compensation (“Proffer”) indicating petitioner should be awarded
$81,355.96. Proffer at 1. In the Proffer, respondent represented that petitioner agrees
1
I intend to post this decision on the United States Court of Federal Claims' website. 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. Because this unpublished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).
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).
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 $81,355.96 in the form of a check payable to petitioner, Glenda
Lee Stewart. This amount represents compensation for all damages that would be
available under § 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GLENDA LEE STEWART, )
)
Petitioner, )
)
v. ) No. 18-1630V
) Chief Special Master Brian Corcoran
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 18, 2019, respondent filed a Vaccine Rule 4(c) report concluding that
petitioner suffered a Shoulder Injury Related to Vaccine Administration within the Table
timeframe following an influenza vaccination, and conceding petitioner’s entitlement to
compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C.
§§300aa-10 to -34. Accordingly, on October 18, 2019, the Chief Special Master issued a Ruling
on Entitlement.
I. Items of Compensation
Respondent proffers that petitioner should be awarded $81,355.96. This amount
represents all elements of compensation to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a). Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $81,355.96 in the form of a check payable to petitioner. 1 This
lump sum payment represents all elements of compensation to which petitioner would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE FIELDING
Assistant Director
Torts Branch, Civil Division
s/ LARA A. ENGLUND
LARA A. ENGLUND
Senior 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) 307-3013
E-mail: lara.a.englund@usdoj.gov
Dated: November 6, 2019
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 medical
expenses, future pain and suffering, and future lost wages.
2