Keib v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1370V UNPUBLISHED

APRIL KEIB, Chief Special Master Corcoran Petitioner, Filed: March 3, 2020 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)

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.

Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1 On September 7, 2018, April Keib 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”) as a result of an influenza (“flu”) vaccination administered on September 21, 2016. Petition at 1-2. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 15, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 3, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $100,040.00, comprised of $100,000 for pain and suffering and $40.00 for past, unreimbursed medical expenses. Proffer at 1. In the Proffer, Respondent represented that Petitioner Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 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, I agree that the identified material fits within this definition, I will redact such material from public access.

2National 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). 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 $100,040.00 (comprised of $100,000.00 for pain and suffering and $40.00 for past, unreimbursed medical 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.3 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) APRIL KEIB, ) ) Petitioner, ) ) No. 18-1370V v. ) Chief Special Master Cocoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation On August 13, 2019, respondent filed a Rule 4(c) report conceding petitioner’s entitlement to compensation, under the terms of the Vaccine Act, for her shoulder injury related to vaccine administration (“SIRVA”) Table injury, following a flu vaccine administered on September 21, 2016. On August 15, 2019, former Chief Special Master Dorsey issued a Ruling on Entitlement, finding that petitioner was entitled to compensation for her SIRVA. Based upon the evidence of record, respondent proffers that petitioner should be awarded $100,040.00. The award is comprised of the following: $100,000.00 for pain and suffering and $40.00 for past, unreimbursed medical expenses. This amount 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 The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $100,040.00, in the form of a check payable to petitioner. 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/ Mollie D. Gorney MOLLIE D. GORNEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 (202) 616- 4029 [email protected] Dated: March 3, 2020