United States Court of Federal Claims, 2021

Carpenter, Jr. v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided May 21, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-208V UNPUBLISHED

DAVID CARPENTER, JR., Chief Special Master Corcoran

Petitioner, Filed: April 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)

Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for petitioner.

Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On February 26, 2020, David Carpenter, Jr., 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 left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza vaccine administered on November 3, 2018. Petition at 1. Petitioner further alleges that the vaccine was administered within the United States, that his injuries lasted more than six months, and that no party has received any compensation in the form of a civil award or settlement for Petitioner’s vaccine-related injuries. Petition at 4-5. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 15, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On April 15, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $60,185.30 comprised of $60,000.00 for pain and suffering and $185.30 for past unreimbursed 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 $60,185.30 comprised of $60,000.00 for pain and suffering and $185.30 for past unreimbursed 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________

)

DAVID CARPENTER, JR., )

)

Petitioner, )

) No. 20-208V (ECF) v. ) Chief Special Master Corcoran

)

SECRETARY OF HEALTH ) AND HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RESPONDENT’S PROFFER ON AWARD OF DAMAGES On April 13, 2021, respondent, the Secretary of Health and Human Services, filed his Rule 4(c) Report conceding entitlement to compensation in this matter alleging a Shoulder Injury Related to Vaccine Administration (“SIRVA”). On April 15, 2021, the Court entered its Ruling on Entitlement, finding petitioner David Carpenter, Jr., entitled to Vaccine Act compensation. Respondent now proffers that petitioner receive a compensation award consisting of a lump sum of $60,185.30 in the form of a check payable to petitioner, David Carpenter, Jr. 1 This amount consists of $60,000.00 for pain and suffering and $185.30 for past unreimbursed expenses, and represents compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled. 2

Petitioner agrees with the proffered award of $60,185.30. 3

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 s/Voris E. Johnson, Jr. VORIS E. JOHNSON, JR. Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4136 [email protected]

Dated: April 15, 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). 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. 1 Petitioner is a competent adult. No guardianship is required. 2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 3 This proffer does not include any award for attorneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e).

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