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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1852V
DEREK KELL, Chief Special Master Corcoran
Petitioner,
v. Filed: November 3, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Laura Levenberg, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON DAMAGES1
On September 14, 2021, Derek Kell 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 a shoulder injury related to vaccine
administration (“SIRVA”) following receipt of an influenza (“flu”) vaccine on October 1,
2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On July 21, 2023, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On November 3, 2023, Respondent filed a proffer on award of
compensation (“Proffer”). Respondent represented that Petitioner agrees with the
proffered award. Id. at 2. Based on the record as a whole, I find that Petitioner is entitled
to an award as stated 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).
Pursuant to the terms stated in the attached Proffer, I award a lump sum
payment of $80,998.23 (representing $80,000.00 for pain and suffering, and $998.23
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
____________________________________
)
DEREK KELL, )
)
)
Petitioner, )
) No. 21-1852V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On September 14, 2021, Derek Kell (“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 Table shoulder injury related to vaccine administration
(“SIRVA”), as the result of an influenza (“flu”) vaccination received on October 1, 2020. See
Petition at 1. On July 21, 2023, the Secretary of Health and Human Services (“respondent”)
filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms
of the Act for a SIRVA Table injury, and on the same day the Chief Special Master issued a
Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 26, 27.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $80,000.00 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 $998.23. See 42 U.S.C. § 300aa-15(a)(4). 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
one 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 $80,998.23, in the form
of a check payable to petitioner.
III. Summary of Recommended Payment Following Judgment
Lump sum payable to petitioner, Derek Kell: $80,998.23
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
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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 pain and
suffering.
2
COLLEEN C. HARTLEY
Assistant Director
Torts Branch, Civil Division
s/ Ronalda E. Kosh
RONALDA E. KOSH
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) 616-4476
Email: ronalda.kosh@usdoj.gov
DATED: November 3, 2023
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