Gill v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0280V
Filed: May 7, 2019
UNPUBLISHED
CHERYL GILL,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH Influenza (Flu) Vaccine; Shoulder
AND HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On February 28, 2017, Cheryl Gill (“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 left shoulder injuries as a
result of her September 26, 2014 influenza (“flu”) vaccination. Petition at 1-2. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On April 1, 2019, a ruling on entitlement was issued, finding petitioner entitled to
compensation for SIRVA. On May 6, 2019, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded $70,000.00. Proffer at
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 Because this unpublished decision contains a reasoned explanation for the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).
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).
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 $70,000.00, in the form of a check payable to
petitioner, Cheryl Gill. 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
CHERYL GILL,
Petitioner, No. 17-280V
Chief Special Master Dorsey
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On February 1, 2019, Chief Special Master Dorsey issued a Fact Ruling, finding that the
onset of petitioner’s alleged shoulder injury occurred within the 48-hour Table time frame for a
Shoulder Injury Related to Vaccine Administration (“SIRVA”). Thereafter,
on March 29, 2019, respondent requested that the Court issue a ruling on the record, and on
April 1, 2019, Chief Special Master Dorsey issued a Ruling on Entitlement finding that petitioner
was entitled to vaccine compensation for her SIRVA. Based on the evidence of record,
respondent proffers that petitioner should be awarded $70,000.00. 1 This amount represents all
elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 2
Petitioner agrees.
1
The parties have no objection to the amount of the proffered award of damages. However,
respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special
Master’s April 1, 2019 entitlement decision, incorporating the February 1, 2019 Fact Ruling.
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.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $70,000.00, in the form of a check payable to petitioner. Petitioner
agrees.
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
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/ Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 305-0660
DATED: May 6, 2019