Kuhn v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1305V
UNPUBLISHED
SUSAN ANN KUHN, Chief Special Master Corcoran
Petitioner, Filed: August 17, 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)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 28, 2018, Susan Ann Kuhn 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 an influenza (“flu”) vaccine administered to her left
shoulder on September 19, 2017. Petition at 1. Petitioner further alleges that her injury
last for more than six months. Petition at 6. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On June 10, 2020, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On August 17, 2020, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $90,100.00 consisting
of $90,000.00 in actual and projected pain and suffering, and $100.00 for past
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
unreimbursable expenses. 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.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $90,100.00 (consisting of $90,000.00 in actual and projected pain
and suffering, and $100.00 for past unreimbursable expenses) 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
)
SUSAN ANN KUHN, )
)
Petitioner, )
) No. 18-1305V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On April 15, 2020, Chief Special Master Corcoran issued Findings of Fact, finding that
the onset of petitioner’s left shoulder injury related to vaccine administration (“SIRVA”)
occurred within 48 hours of vaccination. ECF No. 28 at 2, 7. On June 8, 2020, the Secretary of
Health and Human Services (“respondent”) filed an Amended Vaccine Rule 4(c) Report advising
that, in light of Chief Special Master Corcoran’s Findings of Fact ruling that the onset of
petitioner’s left arm pain occurred within 48 hours of vaccination, and the medical evidence
submitted in this case, respondent did not dispute that petitioner had satisfied all legal
prerequisites for compensation under the Vaccine Act. ECF No. 30 at 2, 8-9. Thereafter, on
June 10, 2020, Chief Special Master Corcoran entered a Ruling on Entitlement, finding
petitioner, Susan Ann Kuhn, entitled to Vaccine Act compensation for her Table SIRVA injury.
ECF No. 31.
I. Items of Compensation
A. Pain and Suffering
Respondent now proffers that, based on the Chief Special Master’s entitlement decision
and the evidence of record, Susan Ann Kuhn should be awarded $90,000.00 in actual and
projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents Susan Ann Kuhn’s expenditure of past
unreimbursable expenses related to her vaccine-related injury. Respondent now proffers that,
based on the Chief Special Master’s entitlement decision and the evidence of record, petitioner
should be awarded past unreimbursable expenses in the amount of $100.00, as provided under
the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees.1
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 Susan Ann Kuhn 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 following2: a lump sum payment of $90,100.00,
1
The parties have no objection to the amount of the proffered award of damages. Assuming the
Chief Special Master issues a damages decision in conformity with this proffer, the parties waive
their right to seek review of such damages decision. However, respondent reserves his right,
pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s June 10, 2020
entitlement decision.
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 pain and suffering, and future lost wages.
2
representing compensation for pain and suffering ($90,000.00), and past unreimbursable
expenses ($100.00), in the form of a check payable to petitioner, Susan Ann Kuhn.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Susan Ann Kuhn: $90,100.00
Respectfully submitted,
ETHAN P. DAVIS
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
s/ Sarah C. Duncan
SARAH C. DUNCAN
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) 514-9729
Fax: (202) 616-4310
DATED: August 17, 2020
3