Andrew v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-1512V
KEN ANDREW, Chief Special Master Corcoran
Petitioner, Filed: November 22, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Andrew Henning, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES
On October 13, 2022, Ken Andrew filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.1 (the
“Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine that was administered
on October 17, 2020. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On November 17, 2023, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On November 22, 2023, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded $48,197.61
(comprised of $47,500.00 in pain and suffering and $697.61 in past unreimbursable
expenses). Proffer at 1-2. 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 $48,197.61 (comprised of $47,500.00 in pain and suffering and
$697.61 in past unreimbursable expenses) in the form of a check payable to
1 National 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 (2018).
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.2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 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
KEN ANDREW,
Petitioner,
v. No. 22-1512V (ECF)
Chief Special Master Corcoran
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 13, 2022, Ken Andrew (“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 he suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza
(“flu”) vaccine he received on or about October 17, 2020. Petition at 1.
On November 16, 2023, respondent conceded that entitlement to compensation was
appropriate under the terms of the Vaccine Act. See ECF No. 22. On November 17, 2023, Chief
Special Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to
vaccine compensation for his SIRVA. See ECF No. 23.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $47,500.00 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 he incurred past unreimbursable expenses
related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past
unreimbursable expenses in the amount of $697.61. 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).1 Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $48,197.61, in the form of a check payable to petitioner. Petitioner
agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
COLLEEN C. HARTLEY
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/ ANDREW J. HENNING
ANDREW J. HENNING
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) 616-4405
Email: andrew.j.henning@usdoj.gov
DATED: November 22, 2023
3