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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-975V
UNPUBLISHED
PAULA D. TYSON, Chief Special Master Corcoran
Petitioner, Filed: July 20, 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)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On July 9, 2018, Paula D. Tyson 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 right shoulder injuries related to
vaccine administration (SIRVA) as a result of an influenza vaccine administered on
February 8, 2017. Petition at 1. Petitioner further alleges that she received the vaccine
in the United States, her injuries and sequelae lasted more than six months, no action
has been filed for Petitioner’s vaccine-related injury, nor has she received any
compensation in the form of award or settlement for her vaccine-related injuries.
Petition at 1, 3. 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
2National 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).
On January 13, 2020, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On July 17, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $81,211.46.
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 $81,211.46 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
PAULA D. TYSON, )
)
Petitioner, )
v. ) No. 18-975V
) Chief Special Master Corcoran
SECRETARY OF HEALTH AND HUMAN ) ECF
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 25, 2019, Chief Special Master Corcoran issued a Findings of Fact, finding
that the onset of petitioner’s right shoulder injury related to vaccine administration (“SIRVA”)
occurred within 48 hours of vaccination. ECF No. 25 at 2, 5. On January 9, 2020, the Secretary
of Health and Human Services (“respondent”) filed an Amended Vaccine Rule 4(c) Report
advising that, in light of Chief Special Master Corcoran’s Findings of Fact ruling that the onset
of petitioner’s right arm pain occurred within 48 hours of vaccination, and the medical evidence
submitted in this case, respondent did not dispute that petitioner had satisfied all legal
prerequisites for compensation under the Vaccine Act. ECF No. 30 at 3-4. Thereafter, on
January 13, 2020, Chief Special Master Corcoran entered a Ruling on Entitlement, finding
petitioner, Paula D. Tyson, entitled to Vaccine Act compensation for her Table SIRVA injury.
ECF No. 31.
I. Amount of Compensation
Respondent now proffers that, based on the Chief Special Master’s entitlement decision
and the evidence of record, petitioner should be awarded $81,211.46. 1 This amount 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
The parties recommend that the compensation provided to petitioner should be made as
described below, and request that the Chief Special Master’s damages decision and the Court’s
judgment award the following: 2
Respondent recommends that the compensation provided to petitioner should be made
Through a lump sum of $81,211.46 in the form of a check payable to petitioner. This amount
represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).
Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
ETHAN P. DAVIS
Acting Assistant Attorney General
1
The parties have no objection to the amount of the proffered award of damages. Assuming the
Chief Special Master issues a damages decision in conformity with this proffer, the parties waive
their right to seek review of such damages decision. However, respondent reserves his right,
pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s January 13,
2020, entitlement decision.
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 medical
expenses, future pain and suffering, and future lost wages.
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C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/ Traci R. Patton
TRACI R. PATTON
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 353-1589
Dated: July 17, 2020
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