Kreger v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0742V
Filed: April 27, 2018
UNPUBLISHED
JENNIFER KREGER,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
SECRETARY OF HEALTH Administration (SIRVA)
AND HUMAN SERVICES,
Respondent.
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On June 5, 2017, Jennifer Kreger (“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”). Petitioner alleges that she suffered a Shoulder Injury Related
to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine
administered to her on October 21, 2015. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On January 25, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On April 26, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $57,500.00 in
actual and projected pain and suffering and $2,754.51 in past unreimbursable expenses
for a total of $60,254.51. Proffer at 1-2. In the Proffer, respondent represented that
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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.
2
National 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).
petitioner agrees with the proffered award. Based on the record as a whole, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $60,254.51 (representing $57,500.00 in actual
and projected pain and suffering and $2,754.51 for past unreimbursable
expenses) in the form of a check payable to petitioner, Jennifer Kreger. 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
IT IS SO ORDERED.
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JENNIFER KREGER, )
)
Petitioner, )
)
v. ) No. 17-742V
) Chief Special Master Nora Beth Dorsey
SECRETARY OF )
HEALTH AND HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On January 25, 2018, respondent filed a Vaccine Rule 4(c) report concluding that
petitioner suffered an injury that is compensable under the National Childhood Vaccine Injury
Act of 1986, as amended, 42 U.S.C. §§300aa-10 to -34. Accordingly, on January 25, 2018, the
Chief Special Master issued a Ruling on Entitlement.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $57,500.00 in actual and projected
pain and suffering. Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $2,754.51. Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $60,254.51 in the form of a check payable to petitioner. 1 This
lump sum payment represents all elements of compensation to which petitioner would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/ LARA A. ENGLUND
LARA A. ENGLUND
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) 307-3013
E-mail: lara.a.englund@usdoj.gov
Dated: April 26, 2018
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 medical
expenses, future pain and suffering, and future lost wages.
2