Brueggeman v. Secretary of Health and Human Services

CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1643V UNPUBLISHED

DENISE BRUEGGEMAN, Chief Special Master Corcoran Petitioner, Filed: February 19, 2021 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)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.

Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1 On October 23, 2019, Denise Brueggeman 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”), which meets the Table definition for SIRVA, after receiving an influenza vaccine on September 28, 2018. Petition at 1, ¶¶ 2, 10. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 18, 2021, Respondent filed a combined Rule 4(c) Report and Proffer (“Rule 4 Report and Proffer”) conceding entitlement and indicating Petitioner should be awarded $46,935.80, representing $46,500.00 for her past pain and suffering and $435.80 for her past unreimbursed expenses. Rule 4 Report and Proffer at 4, ECF No. 28. On February 19, 2021, I issued a ruling on entitlement, finding Petitioner entitled to Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). compensation for her SIRVA. ECF No. 29. Respondent represented that Petitioner agrees with the proffered award. Rule 4 Report and Proffer at 4, ECF No. 28. 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 combined Rule 4 Report and Proffer,3 I award Petitioner a lump sum payment of $46,935.80, representing $46,500.00 for her actual pain and suffering and $435.80 for her actual unreimnburseable 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.4 IT IS SO ORDERED.

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

Because the combined Rule 4 report and proffer contains information regarding Petitioner’s personal medical history which is not generally included in a proffer, when separately filed, I will not attach the proffer to the decision in this case.

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.