Swenson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-625V
Filed: October 22, 2015
Unpublished
****************************
HOLLY SWENSON, *
*
Petitioner, * Damages Decision Based on Proffer;
* Tetanus-diphtheria-acellular pertussis
* (“Tdap”); Shoulder Injury (“SIRVA”);
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Maximillian Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Darryl Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On June 18, 2015, Petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 [the “Vaccine
Act” or “Program”]. Petitioner alleges that she suffered a shoulder injury caused by her
August 21, 2014 Tentanus-diphtheria-acellular pertussis (“Tdap”) vaccination. Petition
at 1. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On October 7, 2015, I issued a ruling on entitlement, finding petitioner entitled to
compensation for a shoulder injury related to vaccine administration (“SIRVA”). On
October 22, 2015, respondent filed a proffer on award of compensation [“Proffer”]
indicating petitioner should be awarded $113,832.20. Proffer at 1.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $113,832.20 in the form of a check payable to petitioner, Holly
Swenson. This amount represents compensation for all damages that would be
available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
s/Nora Beth Dorsey
Nora Beth Dorsey
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
___________________________________
)
HOLLY SWENSON, )
)
Petitioner, ) No. 15-625V ECF
)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On June 18, 2015, Holly Swenson (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34, as amended. Petitioner alleges that as a result of receiving the tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccine on August 21, 2014, she suffered a shoulder injury related to vaccine
administration (“SIRVA”) in her left shoulder that was caused-in-fact by her vaccination.
On October 7, 2015, respondent filed her Vaccine Rule 4(c) report, conceding causation-
in-fact for petitioner’s SIRVA. On October 7, 2015, the Chief Special Master issued a ruling on
entitlement, finding that petitioner was entitled to compensation for a SIRVA caused by the Tdap
vaccine.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$113,832.20, which represents all elements of compensation to which petitioner would be
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to
discuss after the Damages Decision is issued.
entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
III. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $113,832.20, in the form of a check payable to petitioner. 2
Petitioner agrees.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
/s/Darryl R. Wishard
DARRYL R. WISHARD
Senior Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4357
Dated: October 22, 2015 Fax: (202) 616-4310
2
Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.
2