Freehling v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0918V
UNPUBLISHED
MARY FREEHLING, Chief Special Master Corcoran
Petitioner, Filed: February 7, 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)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Jeffrey T. Sprague, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On June 26, 2018, Mary Freehling 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”) vaccination administered on
October 3, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On December 4, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for her SIRVA. On February 7, 2020, Respondent filed a
proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded
$67,500.00, representing her pain and suffering. Proffer at 1-2. In the Proffer,
Respondent represented that Petitioner agrees with the proffered award. Id. at 2.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
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 $67,500.00, representing her pain and suffering 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
___________________________________
)
MARY FREEHLING, )
)
Petitioner, ) No. 18-918V ECF
)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On June 26, 2018, Mary Freehling (“petitioner”) filed a petition for compensation
(“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34, as amended. She alleges that, as a result of receiving the influenza vaccine on October 3,
2016, she suffered from a shoulder injury related to vaccine administration (SIRVA). See
Petition. On December 3, 2019, respondent filed his Vaccine Rule 4(c) report, concluding that
petitioner suffered a left SIRVA as defined by the Vaccine Injury Table within the Table
timeframe. On December 4, 2019, the Chief Special Master issued a ruling on entitlement,
finding that petitioner was entitled to compensation for a SIRVA Table injury.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a lump sum of $67,500.00 for all damages, with the full amount representative of her pain and
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to
address after the Damages Decision is issued.
suffering. This amount represents all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). 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: A lump sum payment of $67,500.00 in
the form of a check payable to petitioner. 2 Petitioner agrees.
2
Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.
2
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/Jeffrey T. Sprague
JEFFREY T. SPRAGUE
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4179
Dated: February 7, 2020
3