Tilley v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0210V UNPUBLISHED

JEANNE TILLEY, Chief Special Master Corcoran Petitioner, Filed: May 4, 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)

Harrison Whitten Long, Rawls Law Group, Richmond, VA, for petitioner.

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

DECISION AWARDING DAMAGES 1 On February 6, 2019, Jeanne Tilley 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 left Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza (“flu”) vaccine on October 18, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On March 25, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a left SIRVA. On May 4, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $83,120.17. Proffer at 1. The award is comprised of the following: $82,500.00 for pain and suffering and Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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.

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). $620.17 for past out of pocket medical expenses. Id. 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 $83,120.17 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

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

JEANNE TILLEY, ) ) Petitioner, ) v. ) No. 19-210V ) Chief Special Master Corocran SECRETARY OF HEALTH AND HUMAN ) SPU SERVICES, ) ECF ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation On March 9, 2020, respondent conceded that entitlement to compensation was appropriate under the terms of the Vaccine Act. The Chief Special Master issued a Ruling on Entitlement on March 25, 2020, finding that petitioner was entitled to vaccine compensation for her left-sided shoulder injury. Based upon the evidence of record, respondent proffers that petitioner should be awarded $83,120.17. The award is comprised of the following: $82,500.00 for pain and suffering and $620.17 for past out of pocket 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 $83,120.17, in the form of a check payable to petitioner. 1 Petitioner agrees.

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.

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/ Traci R. Patton TRACI R. PATTON Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Telephone: (202) 353-1589 Dated: May 4, 2020