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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-905V
SAMANTHA BROTMAN, Chief Special Master Corcoran
Petitioner, Filed: November 17, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES 1
On February 10, 2021, Samantha Brotman 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 Table injury – a shoulder injury
related to vaccine administration (“SIRVA”), as a result of her receipt of an influenza (“flu”)
vaccination on October 24, 2020. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On August 22, 2023, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On November 15, 2023, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $87,500.00 for pain
and suffering and $380.00 for past unreimbursable expenses. Proffer at 2. In the Proffer,
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
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 $87,880.00 (representing $87,500.00 for pain and suffering and
$380.00 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
SAMANTHA BROTMAN, )
)
Petitioner, )
) No. 21-905V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On February 10, 2021, Samantha Brotman (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 to
-34 (“Vaccine 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 that she received on October 24, 2020. ECF No. 1 at 1. On November 14,
2022, petitioner filed an amended petition for compensation. ECF No. 24. The amended
petition provided an expanded set of facts based on petitioner’s medical records, but it did not
contain any changes to the legal allegations made in this case. See id. On August 18, 2023, the
Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) report indicating that
this case was appropriate for compensation under the terms of the Vaccine Act for a SIRVA
Table Injury. ECF No. 31. On August 22, 2023, the Chief Special Master issued a Ruling on
Entitlement finding that petitioner was entitled to compensation. ECF No. 33.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $87,500.00 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 pertaining to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $380.00. 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:1 a lump sum payment of $87,880.00, in the form of a
check payable to petitioner.
III. Summary of Recommended Payment Following Judgment
Lump sum payable to petitioner, Samantha Brotman: $87,880.00
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 lost earnings
and future pain and suffering.
2
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
JULIA M. COLLISON
Assistant Director
Torts Branch, Civil Division
/s/ Benjamin P. Warder
BENJAMIN P. WARDER
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Telephone: (202) 532-5464
Email: Benjamin.P.Warder@usdoj.gov
DATE: November 15, 2023
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