Priebe v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1862V
UNPUBLISHED
SHELLY PRIEBE, Chief Special Master Corcoran
Petitioner, Filed: June 13, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Tetanus Diphtheria acellular
Pertussis (Tdap) Vaccine; Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On December 15, 2020, Shelly Priebe 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 sustained a shoulder injury related to vaccine
administration (SIRVA) after receiving a Tdap vaccination on December 23, 2019. Petition
at 1. Petitioner further alleges that the vaccine was administered within the United States,
Petitioner’s symptoms have continued for more than six months, and that Petitioner has
never received compensation in the form of an award or settlement for her vaccine-related
injury. Petition at 1, 6. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
On April 26, 2022, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On June 13, 2022, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $45,000.00. Proffer at
2. In the Proffer, 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 $45,000.00 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 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
SHELLY PRIEBE,
Petitioner,
v. No. 20-1862V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION1
I. Procedural History
On December 15, 2020, Shelly Priebe (“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 she sustained a Shoulder Injury Related to Vaccine
Administration (“SIRVA”), as defined in the Vaccine Injury Table, within the Table time
period following administration of a Tdap vaccine she received on December 13, 2019. See
Petition. On April 11, 2022, respondent filed his Vaccine Rule 4(c) report, indicating that this
case is appropriate for compensation under the terms of the Act for a SIRVA Table injury.
ECF No. 22. On April 26, 2022, the Chief Special Master issued a ruling on entitlement,
finding that petitioner was entitled to compensation for a SIRVA Table injury. ECF No. 23.
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 $45,000.00, for all damages. 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
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 following2: a lump sum payment of $45,000.00, in the
form of a check payable to petitioner.
IV. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Shelly Priebe: $45,000.00
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
2
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 pain
and suffering.
s/ Tyler C. King
TYLER C. KING
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) 305-0730
Tyler.King@usdoj.gov
Dated: June 13, 2022