United States Court of Federal Claims, 2019

Chesley v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided August 21, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-1936V Filed: June 5, 2019 UNPUBLISHED

MELODY CHESLEY,

Petitioner, v. Special Processing Unit (SPU);

Damages Decision Based on Proffer; SECRETARY OF HEALTH AND Tetanus Diphtheria acellular HUMAN SERVICES, Pertussis (Tdap) Vaccine; Shoulder

Injury Related to Vaccine Respondent. Administration (SIRVA)

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

Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

On December 13, 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 she suffered she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), resulting from the tetanus-diphtheria- acellular pertussis (“Tdap”) vaccination she received on January 6, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 2, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for SIRVA. On June 4, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be “awarded $117,251.32. This is comprised of pain and suffering ($80,000.00), unreimbursable out of pocket expenses incurred personally by petitioner ($901.56), out of pocket medical expenses owed to South Peninsula Hospital, Inc. ($26,359.82), and past lost wages ($9,989.94).” 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 the following:

• a lump sum payment of $90,891.50 (comprised of pain and suffering

($80,000.00), unreimbursable out of pocket expenses incurred personally by petitioner ($901.56), and past lost wages ($9,989.94)) in the form of a check payable to petitioner, Melody Chesley.

• a lump sum of $26,359.82, representing the balance due on petitioner’s past incurred medical expenses, in the form of a check payable jointly to petitioner and South Peninsula Hospital Inc. Petitioner agrees to endorse this payment to South Peninsula Hospital.

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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS MELODY CHESLEY,

Petitioner,

No. 17-1936V v. Chief Special Master Dorsey

ECF SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Compensation for Vaccine Injury-Related Items

On November 1, 2018, respondent filed a Rule 4(c) Report conceding that petitioner is entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”) injury. On November 2, 2018, the Chief Special Master issued a Ruling on Entitlement adopting respondent’s recommendation.

Based upon the evidence of record, respondent proffers that petitioner should be awarded $117,251.32. This is comprised of pain and suffering ($80,000.00), unreimbursable out of pocket expenses incurred personally by petitioner ($901.56), out of pocket medical expenses owed to South Peninsula Hospital, Inc. ($26,359.82), and past lost wages ($9,989.94), and represents 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

Respondent recommends, and petitioner agrees, that the compensation provided to petitioner should be made through the following:

• a lump sum payment of $90,891.50 in the form of a check payable to petitioner 2 and • a lump sum of $26,359.82, representing the balance due on petitioner’s past incurred medical expenses, in the form of a check payable jointly to petitioner and South Peninsula Hospital Inc. Petitioner agrees to endorse this payment to South Peninsula Hospital.

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/ Adriana Teitel ADRIANA TEITEL Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-3677

Dated: June 4, 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). 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. 1 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 and future pain and suffering. 2 Petitioner is a competent adult, therefore evidence of guardianship is not required in this case.

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