United States Court of Federal Claims, 2019

Widner v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided August 14, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1795V Filed: May 29, 2019 UNPUBLISHED

STEVEN WIDNER,

Petitioner, v. Special Processing Unit (SPU);

Damages Decision Based on Proffer; SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder HUMAN SERVICES, Injury Related to Vaccine

Administration (SIRVA) Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

On November 15, 2017, petitioner 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccine on October 11, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On December 3, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for SIRVA. On May 28, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $110,000.00 in compensation for pain and suffering and $3,681.82 in compensation for past-out-of- pocket medical expenses. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $113,681.82, representing $110,000.00 in compensation for petitioner’s pain and suffering and $3,681.82 in compensation for petitioner’s past out-of-pocket expenses, in the form of a check payable to petitioner, Steven Widner. 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/Nora Beth Dorsey Nora Beth Dorsey 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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

************************************* STEVEN WIDNER, *

Petitioner, * No. 17-1795V

* CHIEF SPECIAL MASTER v. * NORA BETH DORSEY

SECRETARY OF HEALTH AND * HUMAN SERVICES, *

Respondent. *

*************************************

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On November 30, 2018, respondent filed a Rule 4(c) Report, conceding that petitioner’s claim meets the Table criteria for a SIRVA injury. On December 3, 2018, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation under the Vaccine Act. I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded the following, and requests that the Chief Special Master’s decision and the Court’s judgment award:

1. A lump sum payment of $110,000.00, which represents compensation for pain and suffering, see 42 U.S.C. § 300aa-15(a)(4); and 2. A payment of $3,681.82, which represents compensation for past out-of-pocket medical expenses, see 42 U.S.C. § 300aa-15(a)(1).

These amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees.

II. Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that petitioner be awarded a lump sum payment of $113,681.82, 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 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ DEBRA A. FILTEAU BEGLEY DEBRA A. FILTEAU BEGLEY Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4181

Dated: May 28, 2019

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is 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). 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). 1 Should petitioner die prior to the entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future pain and suffering.

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