Loughry v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1075V UNPUBLISHED

BRIANNA LOUGHRY, Chief Special Master Corcoran

Petitioner, Filed: May 14, 2021 v.

Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Tetanus Diphtheria acellular

Pertussis (Tdap) Vaccine; Shoulder Respondent. Injury Related to Vaccine

Administration (SIRVA) Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On July 25, 2019, Brianna Loughry 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”) caused by a tetanus-diphtheria-acellular pertussis vaccine administered on March 26, 2018. Petition at 1. Petitioner further alleges that the vaccine was administered within the United States, that she experienced the sequela of her injury for more than six months, and that no party has ever received compensation for her vaccine-related injury. Petition at 4. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On January 12, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On May 12, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $105,045.08 (comprised of $102,500.00 for pain and suffering and $2,545.08 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 $105,045.08 (comprised of $102,500.00 for pain and suffering and $2,545.08 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 ____________________________________

) BRIANNA LOUGHRY, ) No. 19-1075V

) Chief Special Master Brian H. Corcoran Petitioner, )

) v. )

) SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

) Respondent. )

) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On January 11, 2021, respondent conceded that entitlement to compensation was appropriate under the terms of the Vaccine Act. On January 12, 2021, Chief Special Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”) and related sequela.

I. Amount of Compensation

Respondent now proffers that, based on the Chief Special Master’s entitlement decision and the evidence of record, petitioner should be awarded $105,045.08. The award is comprised of the following: $102,500.00 for pain and suffering, and $2,545.08, for past unreimbursed 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 the compensation provided to petitioner should be made as described below, and request that the Chief Special Master’s damages decision and the Court’s judgment award the following: 1

A. Petitioner’s Damages

Respondent recommends that the compensation provided to petitioner should be made through: a lump sum of $105,045.08, in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

Petitioner agrees.

B. Guardianship

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

1 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 medical expenses, future pain and suffering, and future lost wages.

/s/ Kyle E. Pozza_____________ KYLE E. POZZA 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) 616-3661 E-mail: [email protected]

Dated: May 12, 2021