Zekanovic v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0041V
UNPUBLISHED
LIDIJA ZEKANOVIC, Chief Special Master Corcoran
Petitioner, Filed: October 3, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ , for Petitioner.
Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 4, 2021, Lidija Zekanovic 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”) resulting from an influenza vaccine received on October 6, 2018.
Petition at 1, 3. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On August 30, 2022, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On October 3, 2022, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $71,269.98. Proffer at
2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award.
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
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). 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 (2012).
Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated
in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $71,269.98 (comprised of $70,000.00 in pain and suffering and
$1,269.98 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
)
LIDIJA ZEKANOVIC, )
)
Petitioner, )
) No. 21-41V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On January 4, 2021, Lidija Zekanovic (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), alleging that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) because of an influenza (“flu”) vaccine she received in her left deltoid
on October 6, 2018. Petition at 1. On August 29, 2022, the Secretary of Health and Human
Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for
compensation under the terms of the Act for a SIRVA Table injury, and on August 30, 2022, the
Chief Special Master issued a Ruling on Entitlement finding petitioner was entitled to
compensation. ECF Nos. 29-30.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $70,000.00 in 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 $1,269.98. 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
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following 1: a lump sum payment of $71,269.98, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Lidija Zekanovic: $71,269.98
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
1Should 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
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
/s/ AUSTIN J. EGAN
Austin J. Egan
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel: (202) 451-7479
Austin.J.Egan@usdoj.gov
Date: October 3, 2022
3