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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0903V
UNPUBLISHED
BRAD BUNDESEN, Chief Special Master Corcoran
Petitioner, Filed: October 28, 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)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On June 20, 2019, Brad Bundesen 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 he suffered he suffered a left Shoulder Injury
Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine
administered to him on November 3, 2017. Petition at 1. Petitioner further alleges that his
injury lasted longer than six months. Petition at 4. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On October 28, 2020, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On October 28, 2020, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded a total of $52,981.25,
consisting of $52,500.00 for pain and suffering, and $481.25 for past unreimbursed
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
expenses. Proffer at 1. 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 $52,981.25, consisting of $52,500.00 for pain and suffering, and
$481.25 for past unreimbursed expenses 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
____________________________________
)
BRAD BUNDESEN, ) No. 19-903V
) Chief Special Master Brian H. Corcoran
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 15, 2020, respondent conceded that entitlement to compensation was
appropriate under the terms of the Vaccine Act. Thereafter, on the same date, Chief Special
Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine
compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”) and related
sequela.
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 $52,981.25. The award is comprised of
the following: $52,500.00 for pain and suffering, and $481.25 for past unreimbursed expenses.
This amount represents all elements of compensation to which petitioner would be entitled under
42 U.S.C. § 300aa-15(a). Petitioner agrees.
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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: 1
A. Petitioner’s Damages
Respondent recommends that the compensation provided to petitioner should be made
through:
a lump sum of $52,981.25, 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.
B. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
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
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 medical
expenses, future pain and suffering, and future lost wages.
2
/s/ KYLE E. POZZA_________
Kyle E. Pozza
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-3661
Fax: (202) 616-4310
Email: kyle.pozza@usdoj.gov
Dated: October 28, 2020
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