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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0722V
UNPUBLISHED
MARTHA KLUG, Chief Special Master Corcoran
Petitioner, Filed: November 16, 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)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On June 15, 2020, Martha Klug 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”), which meets the definition of a Table SIRVA, after receiving the
influenza vaccine on November 13, 2018. Petition at 1, ¶¶ 2, 9. The case was assigned
to the Special Processing Unit of the Office of Special Masters.
On October 5, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for her SIRVA. On November 15, 2021, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $42,968.57,
representing $42,500.00 for her pain and suffering and $468.57 for her past
unreimbursable expenses. Proffer at 1-2. In the Proffer, Respondent represented that
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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 $42,968.57, representing $42,500.00 for her pain and suffering and
$468.57 for her actual unreimbursable expenses 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 f iling of notice
renouncing the right to seek review.
2
Case 1:20-vv-00722-UNJ Document 29 Filed 11/15/21 Page 1 of 3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARTHA KLUG,
Petitioner,
v. No. 20-722V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On June 15, 2020, Martha Klug (“petitioner”), filed a Petition for compensation under the
National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”),
42 U.S.C. §§ 300aa-1 to -34, alleging that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) in her left shoulder as a result of an influenza (“flu”) vaccine
administered on November 13, 2018. Petition at 1. On October 4, 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, and on October 5, 2021, the Chief
Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF
No. 24; ECF No. 25.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $42,500.00 in actual pain and
suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
Case 1:20-vv-00722-UNJ Document 29 Filed 11/15/21 Page 2 of 3
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 $468.57. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
The above amounts represent 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
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner be made through a lump
sum payment as described below:
A lump sum payment of $42,968.57, in the form of a check payable to petitioner,
Martha Klug.
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
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
2
Case 1:20-vv-00722-UNJ Document 29 Filed 11/15/21 Page 3 of 3
/s/ Alexa Roggenkamp
ALEXA ROGGENKAMP
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
(202) 616-4179
alexa.roggenkamp@usdoj.gov
DATED: November 15, 2021
3