Paul v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-76V
UNPUBLISHED
MAXINE PAUL, Chief Special Master Corcoran
Petitioner, Filed: May 18, 2020
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)
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On January 15, 2019, Maxine Paul 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 SIRVA after receiving the flu
vaccine on January 29, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On March 13, 2020, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On May 15, 2020, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $47,500.00. Proffer at
2. In the Proffer, Respondent represented that Petitioner agrees with the proffered
award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award
as stated in the Proffer.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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 $47.500.00 in the form of a check payable to Petitioner. 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/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
___________________________________
)
MAXINE PAUL, )
)
Petitioner, )
) No. 19-76V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
____________________________________)
PROFFER ON AWARD OF COMPENSATION1
I. Procedural History
On January 15, 2019, Maxine Paul (“petitioner”) filed a Petition (“Petition”) for
compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C.
§§ 300aa-1 to -34 (“Vaccine Act”). Petitioner alleges that she suffered from a shoulder injury
related to vaccine administration (“SIRVA”) as a result of receiving an influenza vaccination in
her left shoulder on January 29, 2018. Petition at 1.
On March 11, 2020, respondent filed a Vaccine Rule 4(c) Report concluding that
petitioner suffered a SIRVA as defined by the Vaccine Injury Table, and on March 13, 2020, the
Court found petitioner entitled to compensation.
II. Items of Compensation
The parties agree that based upon the evidence of record, petitioner is entitled to
compensation for actual pain and suffering. Therefore, respondent proffers that petitioner should
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to discuss after
the Damages Decision is issued.
be awarded actual pain and suffering damages as provided under the Vaccine Act, 42 U.S.C. §
300aa-15(a)(4). Respondent proffers that the appropriate award for petitioner’s actual pain and
suffering is $47,500.00. Petitioner agrees.
III. Form of the Award
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:2
A lump sum payment of $47,500.00, representing compensation for actual pain and
suffering, in the form of a check payable to petitioner. Petitioner agrees.
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
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
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 medical
expenses, future lost earnings, and future pain and suffering.
2
s/ Robert P. Coleman III
ROBERT P. COLEMAN III
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) 305-0274
Email: Robert.P.Coleman@usdoj.gov
DATED: May 15, 2020
3