Bushemi v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1083V
UNPUBLISHED
DIANE BUSHEMI, Chief Special Master Corcoran
Petitioner, Filed: March 14, 2022
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)
Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 27, 2020, Diane Bushemi 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) resulting from an influenza (flu) vaccination received on
October 8, 2019. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On December 9, 2021, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On March 14, 2022, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $96,028.09,
including $95,000.00 for actual and projected pain and suffering and $1,028.09 for past
unreimbursable expenses. Proffer at 1. In the Proffer, Respondent represented that
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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 $96,028.09, including $95,000.00 for actual and projected pain and
suffering and $1,028.09 for past unreimbursable expenses in the form of a check
payable to Petitioner. This amount represents compensation for all damages that would
be available under Section 15(a).
The Clerk of 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
DIANE BUSHEMI, )
)
Petitioner, )
) No. 20-1083V
v.
) Chief Special Master Corcoran
SECRETARY OF HEALTH AND HUMAN ) SPU
SERVICES, ) ECF
)
Respondent. )
)
PROFFER ON AWARD OF COMPENSATION
On August 27, 2020, Diane Bushemi (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act. See 42 U.S.C. §§ 300aa-10 to -34
(“Vaccine Act” or “Act”). Petitioner alleges that she suffered from a left shoulder injury related
to vaccine administration (“SIRVA”) following her receipt of an influenza vaccine on October 8,
2019. Petition (ECF No. 1) at 1, 5. On November 19, 2021, respondent filed a Rule 4(c) Report
recommending compensation be awarded. ECF No. 22. On December 9, 2021, the Chief
Special Master issued Ruling on Entitlement finding that petitioner is entitled to compensation.
ECF No. 24.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that the Court should award petitioner a lump sum of $95,000.00 for
her actual and projected pain and suffering. This amount reflects that the award for projected
pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4).
Petitioner agrees.
B. Past Unreimbursable Expenses
Respondent proffers that the Court should award petitioner a lump sum of $1,028.09 for
past unreimbursable expenses, as provided under 42 U.S.C. § 300aa-15(a)(1)(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 of $96,028.09, in the form of a check payable to petitioner, which represents
all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-
15(a). 1 Petitioner agrees.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
1
Should petitioner die prior to the 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 lost earnings, and future pain and suffering.
2
/s/ Claudia B. Gangi
CLAUDIA B. GANGI
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
(202) 616-4138
claudia.gangi@usdoj.gov
DATED: March 14, 2022
3