United States Court of Federal Claims, 2021

Lewis v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided April 23, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-1792V UNPUBLISHED

STEVEN LEWIS, Chief Special Master Corcoran

Petitioner, Filed: March 24, 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)

Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for Petitioner.

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

DECISION AWARDING DAMAGES1

On November 20, 2018, Steven Lewis 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on October 22, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 13, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 22, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $41,133.50 (comprised of $40,000.00 for pain and suffering and $1,133.50 for past, unreimbursed medical expenses). 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 $41,133.50 (comprised of $40,000.00 for pain and suffering and $1,133.50 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

)

STEVEN LEWIS, )

)

Petitioner, )

) No. 18-1792V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

On November 9, 2020, respondent filed an Amended Rule 4(c) Report, following a fact finding by the Chief Special Master regarding symptom onset, where he chose not to defend this case under the terms of the Vaccine Act for his shoulder injury related to vaccine administration (“SIRVA”) Table injury, after receipt of a flu vaccine administered on October 22, 2016. On November 13, 2020, Chief Special Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to compensation for his SIRVA. Based upon the evidence of record, respondent proffers that petitioner should be awarded $41,133.50. The award is comprised of the following: $40,000.00 for pain and suffering and $1,133.50 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 $41,133.50, 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, BRIAN M. BOYNTON Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Acting Deputy Director Torts Branch, Civil Division DARRYL R. WISHARD 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 22, 2021

1 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. 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).

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