Botts v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-402V
UNPUBLISHED
MINDY BOTTS, Chief Special Master Corcoran
Petitioner, Filed: October 26, 2021
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)
Kristi Suzanne Schubert, Lamothe Law Firm, LLC, New Orleans, LA, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On April 7, 2020, Mindy Botts 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 a shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza vaccine administered on October 2,
2017. Petition at 4. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On August 2, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for a SIRVA. On October 22, 2021, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $140,980.07
(comprised of $125,000.00 for pain and suffering and $15,980.07 for lost wages). Proffer
at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
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).
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 $140,980.07 (comprised of $125,000.00 for pain and suffering and
$15,980.07 for lost wages) 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
MINDY BOTTS, )
)
Petitioner, )
) No. 20-402V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On April 7, 2020, Mindy Botts (“petitioner”) filed a petition for compensation
(“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34, as amended. She alleges that, as a result of receiving the influenza vaccine on October 2,
2017, she suffered from a left shoulder injury that satisfied the criteria for a Shoulder Injury
Related to Vaccine Administration (SIRVA). See Petition at 4. On July 30, 2021, respondent
filed his Vaccine Rule 4(c) report, concluding that petitioner suffered SIRVA as defined by the
Vaccine Injury Table, within the Table timeframe. ECF No. 36. On August 2, 2021, the Chief
Special Master issued a ruling on entitlement, finding that petitioner was entitled to
compensation for a SIRVA Table injury. ECF No. 37.
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to address after
the Damages Decision is issued.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a lump sum of $140,980.07 for all damages, including $125,000.00 representative of pain and
suffering and $15,980.07 representative of lost earnings. This amount represents all elements of
compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
III. Form of the Award
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 $140,980.07, in
the form of a check payable to petitioner. 2 Petitioner agrees.
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
LARA A. ENGLUND
Assistant Director
Torts Branch, Civil Division
2
Should petitioner die prior to entry of judgment, respondent would oppose any award for
future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.
2
/s/Camille M. Collett
CAMILLE M. COLLETT
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) 616-4098
DATED: October 22, 2021 E-mail: Camille.M.Collett@usdoj.gov
3