United States Court of Federal Claims, 2020

Brock v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided January 7, 2020 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-399V

UNPUBLISHED

NANCY BROCK, Chief Special Master Corcoran

Petitioner, Filed: December 4, 2019 v.

Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine and

Pneumococcal Conjugate Vaccine; Respondent. Shoulder Injury Related to Vaccine

Administration (SIRVA) Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.

Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On March 15, 2018, Nancy Brock 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 SIRVA after she received influenza and pneumococcal vaccines on October 8, 2015. Petition at 1-2. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 2, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On December 3, 2019, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $125,000.00. Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. 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 $125,000.00 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________

)

NANCY BROCK, ) No. 18-399V

) Chief Special Master Corcoran Petitioner, ) ECF

)

v. )

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

) PROFFER ON AWARD OF COMPENSATION

I. Compensation for Vaccine Injury-Related Items

On March 29, 2019, respondent filed a Vaccine Rule 4(c) report concluding that petitioner suffered an injury (SIRVA) that is compensable under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34. Accordingly, on April 2, 2019, the Chief Special Master issued a Ruling on Entitlement.

Respondent now proffers that, based on the evidence of record, petitioner should be awarded $125,000.00. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II. Items of Compensation and Form of the Award

The parties recommend that the compensation provided to petitioner should be made through a lump sum payment described below, and request that the Chief Special Master’s decision and the Court’s judgment award the following: 1

A. Petitioner’s Damages

A lump sum payment of $125,000.00 (for past and future pain and suffering) in the form of a check payable to petitioner, Nancy Brock.

B. Guardianship

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 HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division /s/ Daniel A. Principato DANIEL A. PRINCIPATO 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) 616-3662 Fax: (202) 353-2988

Dated: December 3, 2019

1 Because this unpublished ruling 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 ruling 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. 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, future pain and suffering, and future lost wages.

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