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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0798V
UNPUBLISHED
KEVIN REILLEY, Chief Special Master Corcoran
Petitioner, Filed: November 18, 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)
Heather Varney Menezes, Shaheen & Gordon, P.A., Manchester, NH, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES 1
On July 1, 2020, Kevin Reilley 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 he suffered a shoulder injury related to vaccine administration
(“SIRVA”) after an influenza (“flu”) vaccine on October 31, 2018. Petition at 3. This case
was assigned to the Special Processing Unit of the Office of Special Masters.
On September 17, 2021, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for his shoulder injury related to vaccine administration
(“SIRVA”). On November 18, 2021, Respondent filed a proffer on award of compensation
(“Proffer”) indicating Petitioner should be awarded $58,366.13, which is comprised of
$57,500.00 in damages for pain and suffering and $866.13 as compensation for
Petitioner’s actual unreimbursed medical expenses. Proffer at 1. In the Proffer,
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Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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).
Respondent 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 $58,366.13 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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KEVIN REILLEY,
Petitioner, No. 20-798V
Chief Special Master Corcoran
v. SPU
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Procedural History and Items of Compensation
On September 17, 2021, respondent filed his Vaccine Rule 4(c) report, and conceded that
entitlement to compensation was appropriate under the terms of the Vaccine Act. Thereafter, on
that same day, the Chief Special Master issued a Ruling on Entitlement finding that petitioner
was entitled to vaccine compensation for his left Shoulder Injury Related to Vaccine
Administration (“SIRVA”). ECF Doc. 25. Based on the evidence of record, respondent proffers
that petitioner should be awarded $58,366.13, which is comprised of damages for pain and
suffering ($57,500.00) and unreimbursed medical expenses ($866.13). This amount represents
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 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.
1
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $58,366.13, in the form of a check payable to petitioner. Petitioner
agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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
s/ Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 305-0660
mallori.b.openchowski@usdoj.gov
DATED: November 18, 2021
2