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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1146V
UNPUBLISHED
NIKKI RUDD, Chief Special Master Corcoran
Petitioner, Filed: February 10, 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)
Kathryn Lee Bruns, Faraci Lange, LLP, Rochester, NY, for petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On August 7, 2019, Nikki Rudd 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) after receipt of the influenza (flu) vaccine on October 5, 2016.
Petition at 1. Petitioner further alleges that the vaccine was administered in the United
States, onset of symptoms began within 48 hours of vaccination, her symptoms persisted
for more than six months, and she has never received compensation in the form of an
award or settlement for her vaccine-related injuries. Petition at 1, 5-6. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On December 29, 2020, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On February 10, 2021, Respondent filed a proffer on
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
award of compensation (“Proffer”) indicating Petitioner should be awarded $52,928.91.
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 $52,918.91 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
____________________________________
)
NIKKI RUDD, )
)
)
Petitioner, )
) No. 19-1146V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 7, 2019, Nikki Rudd (petitioner) filed a petition for compensation under the
National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”),
42 U.S.C. §§ 300aa-1 to -34. Petitioner alleged that she suffered a Shoulder Injury Related to
Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to
her on October 5, 2016. Petition at 1. On December 21, 2020, the Secretary of Health and
Human Services (“respondent”) filed a Rule 4(c) Report recommending that compensation be
awarded, and the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled
to compensation on December 29, 2020. ECF No. 24; ECF No. 25.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $52,500.00 in actual pain and
suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure for past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $428.91, as provided under the Vaccine
Act, 42 U.S.C. § 300aa-15(a)(1)(B). 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: a lump sum payment of $52,928.91, representing
compensation for actual pain and suffering ($52,500.00), and past unreimbursable expenses
($428.91), in the form of a check payable to petitioner, Nikki Rudd.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Nikki Rudd: $ 52,928.91
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
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
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/s/ Kimberly S. Davey
KIMBERLY S.DAVEY
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) 307-1815
Kimberly.Davey@usdoj.gov
DATED: February 10, 2021
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