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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1072V
Filed: November 5, 2019
UNPUBLISHED
MICHELLE JOHNSON,
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.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Corcoran, Chief Special Master:
On July 20, 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 14, 2017.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On October 3, 2019, a ruling on entitlement was issued, finding petitioner entitled
to compensation for SIRVA. On November 1, 2019, respondent filed a proffer on award
of compensation (“Proffer”) indicating petitioner should be awarded $72,500.00. Proffer
at 1. In the Proffer, respondent represented that petitioner agrees with the proffered
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 Because this unpublished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).
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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).
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 $72,500.00 in the form of a check payable to petitioner, Michelle
Johnson. 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
MICHELLE JOHNSON, *
*
Petitioner, * No. 18-1072V
* CHIEF SPECIAL MASTER CORCORAN
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On September 27, 2019, respondent filed a Rule 4(c) Report, conceding that petitioner’s
claim meets the Table criteria for a SIRVA injury. On October 3, 2019, the Court issued a
Ruling on Entitlement finding petitioner entitled to compensation under the Vaccine Act.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
the following, and requests that the Chief Special Master’s decision and the Court’s judgment
award:
A lump sum payment of $72,500.00, which represents compensation for pain and
suffering, see 42 U.S.C. § 300aa-15(a)(4).
These amounts represent all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees.
1
Should petitioner die prior to the entry of judgment, the parties reserve the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future pain
and suffering.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that petitioner be awarded a lump sum payment of $72,500.00, in the
form of a check payable to petitioner. Petitioner agrees.
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 M. FIELDING
Assistant Director
Torts Branch, Civil Division
/s/ DEBRA A. FILTEAU BEGLEY
DEBRA A. FILTEAU BEGLEY
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-4181
Dated: November 1, 2019
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