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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0453V
UNPUBLISHED
DENISSA HARTE, Chief Special Master Corcoran
Petitioner, Filed: October 28, 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)
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On April 17, 2020, Denissa Harte 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 left shoulder injury related to vaccine
administration (SIRVA) as a result of an influenza (“flu”) vaccine administered to her on
September 14, 2018. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On September 24, 2021, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for a left SIRVA. ECF 30. On October 27, 2021, Respondent
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be
awarded $104,210.92. 3 Proffer at 2.
This consists of an award of $100,000.00 in pain and suffering and an award of
$4210.92 in past unreimbursable expenses. Id. at 1-2.
In the Proffer, Respondent further represented that 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 $104,210.92 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. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Respondent initially filed a proffer on October 26, 2021, requesting that Petitioner be awarded a lump
sum payment of $104,210.90. ECF 33 at 2. This was a calculation error. ECF 35. The court subsequently
issued a Decision Awarding Damages with this incorrect amount. ECF 34. Both the proffer and decision
were stricken pursuant to an order filed on October 27, 2021. ECF 35.
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
___________________________________
)
DENISSA HARTE, )
)
Petitioner, )
) No. 20-453V
v. ) Chief Special Master Brian H. Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On April 17, 2020, Denissa Harte (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”
or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza
vaccine she received on September 14, 2018. On September 24, 2021, the Secretary of Health
and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is
appropriate for compensation under the terms of the Act for a SIRVA Table injury, and on the
same day, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to
compensation. ECF No. 29; ECF No. 30.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $100,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $4,210.92. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). 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 1: a lump sum payment of $104,210.92, in the form of
a check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Denissa Harte: $104,210.92
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
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 lost earnings
and future pain and suffering.
2
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s James V. Lopez
JAMES V. LOPEZ
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-3655
Fax: (202) 616-4310
Email: james.lopez@usdoj.gov
Date: October 27, 2021
3