United States Court of Federal Claims, 2020

Torres-Sandlin v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided January 17, 2020 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-1696V UNPUBLISHED

MARISOL TORRES-SANDLIN, Chief Special Master Corcoran

Petitioner, Filed: December 17, 2019 v.

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

Injury Related to Vaccine Respondent. Administration (SIRVA)

John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On November 1, 2018, Marisol Torres-Sandlin 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 shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza vaccination on November 3,3 2015. Petition at 1, ¶¶ 1, 40. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 18, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On December 17, 2019, Respondent filed a Proffer indicating Petitioner should be awarded $97,159.91, representing $95,000.00 in compensation for Petitioner’s actual and projected pain and suffering4 and $2,159.91 in compensation 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, 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 $97,159.91, representing $95,000.00 in compensation for Petitioner’s actual and projected pain and suffering and $2,159.91 in compensation for Petitioner’s actual unreimbursable expenses 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.5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

4The portion of this award attributable to Petitioner’s projected pain and suffering has been reduced to net present value. See § 15(a)(4) (requiring this reduction).

5 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 )

MARISOL TORRES-SANDLIN, )

)

Petitioner, )

) No. 18-1696V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On November 1, 2018, Marisol Torres-Sandlin (“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 a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on November 2, 2015.1 Petition at 1, 11. On October 18, 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. 21; ECF No. 22.

I. Items of Compensation

A. Pain and Suffering Respondent proffers that Marisol Torres-Sandlin should be awarded $95,000.00 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 Marisol Torres-Sandlin’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 $2,159.91, 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 Marisol Torres-Sandlin 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 following2: a lump sum payment of $97,159.91, representing compensation for pain and suffering ($95,000.00), and past unreimbursable expenses ($2,159.91), in the form of a check payable to petitioner, Marisol Torres-Sandlin.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Marisol Torres-Sandlin: $97,159.91

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/ Sarah C. Duncan SARAH C. DUNCAN 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) 514-9729 Fax: (202) 616-4310

DATED: December 17, 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 As Respondent notes in his proffer on award of compensation (“Proffer”), Petitioner refers to the date of vaccination as November 2 and 3, 2015, but the vaccine record indicates the vaccination was administered on November 3, 2015. Proffer at 1 n.1 (comparing the Petition at 1-2 and Exhibit 2 (record of vaccination)). 1 The petition notes the date of vaccination alternately as November 2, and November 3, 2015. Compare petition at 1 with petition at 2. The vaccine administration record indicates that petitioner received the vaccine on November 3, 2015. Exhibit (“Ex.”) 2. 2 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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