United States Court of Federal Claims, 2019

Overall v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided October 17, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-0838V Filed: July 26, 2019 UNPUBLISHED

ANGELA OVERALL,

Petitioner, v. Special Processing Unit (SPU);

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

Neuritis Respondent.

Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner. Ida Nassar, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On June 13, 2018, 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 brachial neuritis causally related to an adverse reaction from the tetanus, diphtheria, acellular pertussis (“tdap”) vaccination she received in her left arm on February 19, 2016. Petition at 1, ¶¶ 1, 9-10. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 29, 2019, a ruling on entitlement was issued, finding petitioner entitled to compensation for her brachial neuritis. On July 26, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $77,189.02, representing an award of $75,000.00 for petitioner’s actual and project pain and suffering3 and an award of $2,189.02 for petitioner’s actual unreimbursable expenses. Proffer at 1-2. 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 $77,189.02, representing an award of $75,000.00 for petitioner’s actual and project pain and suffering and an award of $2,189.02 for petitioner’s actual unreimbursable expenses in the form of a check payable to petitioner, Angela Overall. 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.4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

3 The Proffer indicates the amount awarded for petitioner’s projected pain and suffering has been reduced to its net present value. Proffer at 1; see § 15(f)(4)(A) (requiring a reduction to net present value for future compensation being currently paid). 4 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

) ANGELA OVERALL, )

) Petitioner, )

) No. 18-838V v. ) Chief Special Master Dorsey

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

) Respondent. )

) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On June 13, 2018, Angela Overall (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered brachial neuritis as a result of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine administered to her on February 19, 2016. Petition at 1-2. On April 29, 2019, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act, and the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation the same day. ECF No. 26; ECF No. 27.

I. Items of Compensation

A. Pain and Suffering Respondent proffers that Angela Overall should be awarded $75,000.00 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 Angela Overall’s expenditure of past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $2,189.02, as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees. 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 Angela Overall 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 1: a lump sum payment of $77,189.02, representing compensation for pain and suffering ($75,000.00), and past unreimbursable expenses ($2,189.02), in the form of a check payable to petitioner, Angela Overall. III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Angela Overall: $77,189.02

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/ Ida Nassar IDA NASSAR 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) 616-4186

DATED: July 26, 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. 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 lost earnings and future pain and suffering.

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