Portock v. Secretary of Health and Human Services ( 2024 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1653V
JENNIFER L. PORTOCK,
Chief Special Master Corcoran
Petitioner,
v.
Filed: October 15, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner.
Felicia Langel, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 3, 2021, Jennifer L. Portock 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 left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on
October 21, 2020. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On August 13, 2024, a ruling on entitlement was issued, finding Petitioner entitled
to compensation. On October 11, 2024, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded a total of $49,691.20,
consisting of $47,500.00 for pain and suffering, and $2,191.20 in past unreimbursable
expenses. Proffer at 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.
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 Petitioner a lump
sum payment of $49,691.20 (consisting of $47,500.00 for pain and suffering, and
$2,191.20 in 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
JENNIFER L. PORTOCK,
Petitioner,
v. No. 21-1653V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 3, 2021, Jennifer L. Portock (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act. See 42 U.S.C. §§ 300aa-1 to -34, as amended
(“Vaccine Act”). Petitioner alleges that she suffered from a shoulder injury related to vaccine
administration (“SIRVA”), as defined in the Vaccine Injury Table (“Table”), following the
administration of the influenza (“flu”) vaccine on October 21, 2020. 42 C.F.R.
§ 100.3(a)(XIV)(B); Petition at 1. On March 28, 2023, the Secretary of Health and Human
Services (“respondent”) filed a combined Rule 4(c) Report and Response to Petitioner’s Motion
for Ruling on the Record recommending that compensation be denied. See ECF No. 34. On
August 13, 2024, the Chief Special Master issued a Ruling on Entitlement finding petitioner
entitled to compensation.1 See ECF No. 36.
1
Respondent has no objection to the amount of the proffered award of damages set forth herein.
Assuming the Chief Special Master issues a damages decision in conformity with this proffer,
respondent waives his right to seek review of such damages decision. However, respondent
reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special
Master’s August 13, 2024, entitlement decision.
I. Items of Compensation
A. Pain and Suffering
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$47,500.00 for 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 related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $2,191.20. 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
Respondent recommends that compensation provided to petitioner should be made
through one lump sum payment, and requests that the Chief Special Master’s decision and the
Court’s judgment award the following:2 a lump sum payment of $49,691.20 in the form of a
check payable to petitioner.
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
2
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
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
COLLEEN C. HARTLEY
Assistant Director
Torts Branch, Civil Division
/s/ Felicia D. Langel
FELICIA D. LANGEL
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) 305-3148
felicia.d.langel@usdoj.gov
DATED: October 11, 2024
3