United States Court of Federal Claims, 2021

Clark v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided May 28, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1387V UNPUBLISHED

LISA CLARK, Chief Special Master Corcoran

Petitioner, Filed: April 27, 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)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On September 11, 2019, Lisa Clark 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”) as a result of an influenza (“flu”) vaccine administered on October 12, 2018. Petition at 1. Petitioner further alleges that the vaccine administer within the United States, that she suffered from the injury for more than six months, and that there has been no award or settlement for Petitioner’s vaccine-related injury. Petition at 3. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 22, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On April 26, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $67,643.71 comprised of $65,000.00 for pain and suffering and $2,643.71 for past unreimbursed out-of-pocket 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 $67,643.71 comprised of $65,000.00 for pain and suffering and $2,643.71 for past unreimbursed out-of-pocket 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

LISA CLARK, )

) Petitioner, ) No. 19-1387V

) Chief Special Master v. ) Brian H. Corcoran

) SPU SECRETARY OF HEALTH ) AND HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION On September 11, 2019, Lisa Clark (“petitioner”) filed a petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to - 34 (“Vaccine Act” or “Act”), as amended. Respondent conceded petitioner’s entitlement to compensation in his Rule 4(c) Report filed on April 21, 2021. Based on Respondent’s Rule 4(c) Report, on April 22, 2021, Chief Special Master Corcoran found petitioner entitled to compensation for her left shoulder SIRVA injury.

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded $67,643.71. The award is comprised of $65,000.00 for pain and suffering, and $2,643.71 for past unreimbursable out-of-pocket medical expenses. This 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

Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $67,643.71, in the form of a check made payable to petitioner. 1 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 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division s/Althea Walker Davis ALTHEA WALKER DAVIS Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515 [email protected]

DATED: April 26, 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 Should petitioner die prior to the entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering.

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