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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0881V
UNPUBLISHED
ZEHRA RIZVI, Chief Special Master Corcoran
Petitioner, Filed: September 21, 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)
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 8, 2021, Zehra Rizvi 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 defined in the Vaccine Table, after receiving the influenza
(“flu”) vaccine in her left deltoid on October 9, 2019. Petition at 1, ¶¶ 3, 15-16, 18. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
On August 2, 2022, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for her SIRVA. On September 21, 2022, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $110,115.79,
representing $105,000.00 for her pain and suffering and $5,115.79 for her mileage and
unreimbursed expenses. Proffer at 2. In the Proffer, Respondent represented that
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
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 $110,115.79, representing $105,000.00 for her pain and suffering
and $5,115.79 for her mileage and 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 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
ZEHRA RIZVI,
Petitioner, No. 21-881V
Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On February 8, 2021, Zehra Rizvi (“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 alleges that she suffered a left Shoulder
Injury Related to Vaccine Administration (“SIRVA”) caused by an influenza (“flu”) vaccine
administered on October 3, 2019. Petition at 1, 5. On May 13, 2022, the Chief Special Master
issued Findings of Fact and Conclusions of Law, finding that the evidence supported petitioner’s
assertion that she was vaccinated in her left shoulder.1 ECF No. 26 at 7-8.
On August 1, 2022, respondent filed his Vaccine Rule 4(c) report. In light of the Chief
Special Master’s Findings and Conclusions, respondent submitted that petitioner had otherwise
satisfied the criteria set forth in the Vaccine Injury Table and the Qualifications and Aids to
Interpretation (“QAI”) for SIRVA. See 42 C.F.R §§ 100.3(a)(XIV) and (c)(10). As such,
respondent requested a ruling on the record regarding petitioner’s entitlement to compensation.
1 Respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of
the Chief Special Master’s May 13, 2022 Findings and Conclusions which provided the basis for
his Ruling on Entitlement. This right accrues following issuance of a Decision on Damages.
ECF No. 31. On August 2, 2022, 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 $110,115.79, consisting of
$105,000.00 for pain and suffering and $5,115.79 for mileage and 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 2: a lump sum payment of $110,115.79, representing
compensation for all elements of economic and noneconomic damages, in the form of a check
payable to petitioner, Zehra Rizvi.
III. Summary of Recommended Payment Following Judgment
Lump sum payable to petitioner, Zehra Rizvi: $110,115.79.
Respectfully submitted,
BRIAN BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting 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 lost
earnings and future pain and suffering.
2
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
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 21, 2022
3