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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 5, 2020
* * * * * * * * * * * * * * **
JEAN GENTILE, * PUBLISHED
*
Petitioner, * No. 16-980V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Pain and Suffering; Future Pain and
AND HUMAN SERVICES, * Suffering; Causation-In-Fact; Influenza
* (“Flu”) Vaccine; Shoulder Injury Related
Respondent. * to Vaccine Administration (“SIRVA”);
* Out-of-Pocket Expenses
* * * * * * * * * * * * * * **
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.
Julia M. Collison, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On August 10, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act” or
“the Program”). Petitioner alleges that she suffered a left shoulder injury caused by her October
15, 2015 influenza (“flu”) vaccination. Petition at 1.
On October 29, 2018, the undersigned issued a ruling on entitlement, finding that
petitioner was entitled to compensation. Ruling on Entitlement dated Oct. 29, 2018 (ECF No.
46). The parties then attempted to resolve damages informally, but they were unable to do so. A
damages hearing was subsequently held on February 26, 2020, in Washington, D.C.
1
Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is 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, the undersigned
agrees that the identified material fits within this definition, the undersigned 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).
1
On June 5, 2020, the undersigned issued a damages ruling, awarding petitioner of
$85,000.00 for actual pain and suffering, $500.00 per year for her life expectancy for future pain
and suffering, and $1,199.38 for actual unreimbursable expenses. Damages Ruling dated June 5,
2020 (ECF No. 81). That ruling is incorporated herein as if fully set forth. The undersigned also
ordered petitioner to file a joint status report converting the undersigned’s award of future pain
and suffering to net present value. Id. at 18. On August 4, 2020, respondent informed the Court
that the parties’ calculated the present value of petitioner’s future pain and suffering and agree to
an award of $10,094.83. Respondent’s Joint Status Report dated Aug. 5, 2020 (ECF No. 85).
Therefore, based on the record as a whole, and pursuant to the undersigned’s damages
ruling, the undersigned finds that petitioner is entitled to an award as ordered below:
The undersigned awards a lump sum payment of $85,000.00 for actual pain and
suffering, a lump sum of $10,094.83 for future pain and suffering, and a lump sum
payment of $1,199.38 for past unreimbursable expenses, for a total of $96,294.21 in the
form of a check payable to petitioner.
These amounts represent compensation for all damages that would be available under §
300aa-15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
2