Doyle v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0207V
UNPUBLISHED
PHYLLIS DOYLE, Chief Special Master Corcoran
Petitioner, Filed: January 7, 2021
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)
Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On February 26, 2020, Phyllis Doyle 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 received an influenza (“flu”) vaccine in her right
deltoid on November 17, 2018 and suffered from brachial neuritis. 3 Petition at 1, 7. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
On January 5, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for a right SIRVA. On January 6, 2021, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $58,065.29,
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
3
Respondent conceded that Petitioner suffered a Shoulder Injury Related to Vaccine Injury (SIRVA) as a
result of the November 17, 2018 flu vaccine. ECF 20. Petitioner filed an amended petition on January 6,
2021. ECF 24.
consisting of $57,500.00 in pain and suffering and $565.29 in past unreimbursable
expenses. 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 $58,065.29 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. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4
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
)
PHYLLIS DOYLE, )
)
Petitioner, )
) No. 20-207V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On January 6, 2021, Phyllis Doyle (“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 defined in the Vaccine Injury Table, following administration of an influenza
vaccine she received on November 17, 2018. 1 Amended Petition at 1-2. On January 4, 2021, 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 for a SIRVA Table injury,
and on January 5, 2021, the Chief Special Master issued a Ruling on Entitlement finding
petitioner entitled to compensation. ECF No. 20; ECF No. 21.
1
Petitioner filed the original petition on February 26, 2020 alleging that a flu vaccine caused
petitioner to suffer from brachial neuritis. See ECF No. 1. Following the filing of respondent’s
Rule 4(c) Report, conceding that petitioner satisfied the Table criteria for SIRVA, petitioner
amended her petition on January 6, 2021. See ECF No. 24.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $57,500.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $565.29. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is 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 $58,065.29, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Phyllis Doyle: $58,065.29
Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
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
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/ Mollie D. Gorney
MOLLIE D. GORNEY
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) 616-4029
DATED: January 6, 2021
3