Severino v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 28, 2020
* * * * * * * * * * ** *
ANA SEVERINO , * UNPUBLISHED
*
*
Petitioner, * No. 18-09V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Damages Decision Based on Proffer;
AND HUMAN SERVICES, * Tetanus-diphtheria-pertussis
* (“Tdap”); Shoulder Injury Related to
Respondent. * Vaccine Injury (“SIRVA”).
*
* * * * * * * * * * * * *
Shealene P. Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Lisa A. Watts, Department of Justice, Washington, D.C., for respondent.
DECISION AWARDING DAMAGES1
On January 2, 2018, Ana Severino (“petitioner”) filed a petition under the National
Vaccine Injury Compensation Program (the “Vaccine Act” or the “Vaccine Program”).2
Petitioner alleges that she received a tetanus-diphtheria-pertussis (“Tdap”) vaccine on January
20, 2015, which was the actual cause of her developing a Shoulder Injury Related to Vaccine
Administration (“SIRVA”). Petition at Preamble (ECF No. 1).
On December 4, 2019, a fact hearing was held via videoconference to determine onset of
petitioner’s pain in her left shoulder and if her injury continued for a period of six months or
more, as required by the Vaccine Act. Hearing Order (ECF No. 26); Transcript (ECF No. 31).
On January 24, 2020, the undersigned issued a Finding of Fact Ruling. Findings of Fact (ECF
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. §3501 note (2012), because this ruling contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the ruling is
posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed
redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the ruling
will be posted on the court’s website without any changes. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012).
All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
No. 33). On May 15, 2020, a ruling on entitlement was issued, finding petitioner entitled to
compensation for SIRVA.
On May 28, 2020, respondent filed a proffer on award of compensation (“Proffer”).
Proffer (ECF No. 40). The Proffer indicated that petitioner should be awarded a total of
$72,947.40, consisting of $72,500.00 for petitioner’s past and future pain and suffering and
$447.40 for past unreimbursable expenses. Proffer at 1. In the Proffer, respondent states that
this represents all elements of compensation to which petitioner would be entitled under 42
U.S.C. §300aa-15(a). Id. Additionally, respondent states that petitioner agrees with the proffer
award. 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 Proffer, I award petitioner a lump sum of payment
of $72,947.40 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/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expediated by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_________________________________________
ANA SEVERINO, )
) ECF
Petitioner, )
)
v. ) No. 18-09V
) Special Master Gowen
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 15, 2020, the Court issued a Ruling on Entitlement finding that Ana Severino
(“petitioner”) suffered a left shoulder injury related to vaccine administration (“SIRVA”), a Table
injury, following receipt of a tetanus, diphtheria, acellular-pertussis (“Tdap”) vaccine administered
to her on January 20, 2015. Respondent now Proffers the following regarding the amount of
compensation to be awarded. 1
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a total of $72,947.40 consisting of $72,500.00 for her past and future pain and suffering and
$447.40 for past unreimbursable expenses. This 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 proffered award of damages. However, respondent
reserves his right to seek review of the Special Master’s decision pursuant to 42 U.S.C.
§ 300aa-12(e)(1).
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 damages.
1
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $72,947.40 in the form of a check payable to petitioner. 3
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
s/Lisa A. Watts
LISA A. WATTS
Senior 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) 616-4099
DATED: May 28, 2020
3
Petitioner is a competent adult. Proof of guardianship is not required in this case.
2