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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0131V
UNPUBLISHED
DYAN LABELLE, Chief Special Master Corcoran
Petitioner, Filed: September 13, 2022
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)
Edward M. Kraus, Kraus Law Group, LLC, Chicago, IL, for Petitioner.
Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 6, 2021, Dyan Labelle 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”) as a result of an influenza vaccine received on October 23,
2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On June 16, 2022, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On September 13, 2022, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $63,527.78. Proffer
at 1. 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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 $63,527.78 (consisting of $62,500.00 for pain and suffering and
$1,027.78 in unreimbursed medical 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 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
DYAN LaBELLE,
Petitioner,
No. 21-131V
v. Chief Special Master Corcoran
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On January 6, 2021, Dyan LaBelle (“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 (“Vaccine Act” or “Act”). Petitioner alleged that she suffered a left Shoulder
Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine
administered on October 23, 2019. Petition at 1.
On June 16, 2022, respondent filed his Vaccine Rule 4(c) report, recommending that
compensation be awarded. Resp.’s Rept. at 1 (ECF No. 31). The same day, this Court issued a
Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 32.
I. Items of Compensation
Respondent proffers that petitioner should be awarded $63,527.78, consisting of
$62,500.00 for pain and suffering and $1,027.78 in unreimbursed medical expenses. This
represents 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 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 $63,527.78, representing
compensation for all elements of economic and noneconomic damages, in the form of a check
payable to petitioner, Dyan LaBelle.
III. Summary of Recommended Payment Following Judgment
Lump sum payable to petitioner, Dyan LaBelle: $63,527.78.
Respectfully submitted,
BRIAN 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
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
1Should 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
s/ Jennifer A. Shah
Jennifer A. Shah
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) 305-2181
Jennifer.shah@usdoj.gov
Dated: September 13, 2022
3