United States Court of Federal Claims, 2019

Cohen v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided November 13, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1980V Filed: August 22, 2019

UNPUBLISHED

RHODA COHEN,

Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder SECRETARY OF HEALTH AND Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA)

Respondent.

Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner. Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On December 19, 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 right shoulder injuries caused in fact by the influenza vaccination she received on October 17, 2016. Petition at 1, ¶¶ 2, 12. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 7, 2019, a ruling on entitlement was issued, finding petitioner entitled to compensation for her shoulder injury related to vaccine administration (“SIRVA”). On August 19, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $48,093.15, representing $47,500.00 for petitioner’s pain and suffering and $593.15 for petitioner’s out-of-pocket 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 $48,093.15, representing $47,500.00 for petitioner’s pain and suffering and $593.15 for petitioner’s unreimbursable expenses, in the form of a check payable to petitioner, Rhoda Cohen. 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 )

RHODA COHEN, )

)

Petitioner, )

) No. 17-1980V (ECF) v. ) Chief Special Master Dorsey

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

)

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

On August 6, 2019, respondent filed his Rule 4(c) Report conceding entitlement in the above-captioned case. Chief Special Master Dorsey issued a Ruling on Entitlement on August 7, 2019, finding that petitioner was entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”). Based on the evidence of record, respondent proffers that petitioner should be awarded $48,093.15. This amount includes $47,500.00 for pain and suffering, and $593.15 for out-of-pocket expenses, and it represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award

Respondent recommends that the compensation provided to petitioner be made through a lump sum payment of $48,093.15 in the form of a check payable to petitioner.1 Petitioner agrees.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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 GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division s/Amy P. Kokot AMY P. KOKOT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 616-4118

Dated: August 19, 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 the entry of judgment, respondent reserves 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.

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