United States Court of Federal Claims, 2021

Burke v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided April 27, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1102V UNPUBLISHED

PETER D. BURKE, Chief Special Master Corcoran Petitioner, Filed: March 25, 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)

Richard H. Moeller, Moore, Heffernan, et al. Sioux City, IA, for Petitioner.

Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On July 30, 2019, Peter D. Burke 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 11, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On December 4, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 24, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $65,000.00.

Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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 $65,000.00 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 ____________________________________ ) PETER D. BURKE, ) ) Petitioner, ) ) No. 19-1102V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On July 30, 2019, Peter D. Burke (“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 he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine he received on October 11, 2017. Petition at 1–2. On December 4, 2020, 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 for a SIRVA Table injury, and on December 4, 2020, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 24; ECF No. 25.

I. Items of Compensation The only item of compensation at issue is pain and suffering. Respondent proffers that petitioner should be awarded $65,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4).

Petitioner agrees.

This amount represents all elements of compensation to which petitioner is entitled under U.S.C. § 300aa-15(a). 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 petitioner 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 following 1: a lump sum payment of $65,000.00, in the form of a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Peter D. Burke: $65,000.00 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

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. /s/ Lauren Kells LAUREN KELLS 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) 616-4187 Email: [email protected] DATED: March 24, 2021

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