Hildebrand v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1268V
UNPUBLISHED
LORI A. HILDEBRAND, Chief Special Master Corcoran
Petitioner, Filed: March 11, 2020
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)
Jeffrey A. Golvash, Golvash & Epstein, LLC, Pittsburgh, PA, for petitioner.
Laurie Wiesner, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On August 22, 2018, Lori Hildebrand 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 her September 23, 2016 influneza (“flu”)
vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On October 25, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On March 9, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $66,000.00
in actual and projected pain and suffering. This amount reflects that the award for
projected pain and suffering has been reduced to net present value. Proffer at 1-2. In
the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id.
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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 $66,000.00 (representing compensation for Petitioner’s actual
and projected pain and suffering) in the form of a check payable to Petitioner.
This amount represents compensation for all damages that would be available under §
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 filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
LORI HILDEBRAND, )
)
)
Petitioner, )
) No. 18-1268V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 22, 2018, Lori Hildebrand (“petitioner”) filed a petition for
compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§
300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury
Related to Vaccine Administration (“SIRVA”) as a result of an influenza vaccine she
received on September 23, 2016. Petition at 3-5. On October 24, 2019, 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 25,
2019, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled
to compensation. ECF No. 32; ECF No. 33.
I. Item of Compensation
Respondent proffers that Lori Hildebrand should be awarded $66,000.00 in actual
and projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). 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 Lori Hildebrand
should be made through a lump sum payment as described below and request that the
Chief Special Master’s decision and the Court’s judgment award the following 1: a lump
sum payment of $66,000.00, representing compensation for pain and suffering, in the
form of a check payable to petitioner, Lori Hildebrand.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Lori Hildebrand: $66,000.00
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER PEARLMAN
Assistant Director
Torts Branch, Civil Division
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.
s/Laurie Wiesner
LAURIE WIESNER
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
Ben Franklin Station, P.O. Box 146
Washington, D.C. 20044-0146
Tel.: (202) 305-0253
DATE: March 9, 2020