Delpha v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1313V
Filed: July 25, 2019
UNPUBLISHED
SALLY JO DELPHA,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On September 22, 2017, 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 the influenza (“flu”) vaccine administered on
October 3, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On August 1, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation for her SIRVA. On July 25, 2019, respondent filed a proffer on award
of compensation (“Proffer”) indicating petitioner should be awarded $143,061.79.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required 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).
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).
Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the
proffered award. Id. 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 $143,061.79 (representing compensation in the
amount of $130,000.00 for pain and suffering; $12,616.77 for lost wages; and
$445.02 for out-of-pocket expenses) in the form of a check payable to petitioner,
Sally Jo Delpha. This amount represents compensation for all damages that would be
available under § 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
)
SALLY JO DELPHA, )
)
Petitioner, )
) No. 17-1313V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On July 23, 2018, respondent filed his Rule 4(c) Report conceding entitlement in the
above-captioned case. Chief Special Master Dorsey issued a Ruling on Entitlement on August 1,
2018, finding that petitioner was entitled to vaccine compensation for her Shoulder Injury Related
to Vaccine Administration (“SIRVA”). Based on the evidence of record, respondent proffers that
petitioner should be awarded $143,061.79. This amount includes $130,000.00 for pain and
suffering; $12,616.77 for lost wages; and $445.02 for out-of-pocket expenses, and it represents all
elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).
Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner be made through a
lump sum payment of $143,061.79 in the form of a check payable to petitioner.1 Petitioner agrees.
1
Should petitioner die prior to the entry of judgment, respondent reserves 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.
1
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/Amy P. Kokot
AMY P. KOKOT
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Ben Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4118
Dated: July 25, 2019
2