United States Court of Federal Claims, 2021

Ellington v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided July 30, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1866V UNPUBLISHED

ANDREA ELLINGTON, Chief Special Master Corcoran

Petitioner, Filed: June 29, 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)

Bobbie L. Flynt, Crandall & Pera Law, LLC, Chagrin Falls, OH, for Petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On December 10, 2019, Andrea Ellington 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 6, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On May 12, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On June 29, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $73,880.00 (representing compensation in the amounts of $72,500.00 for pain and suffering and $1,380.00 for past unreimbursable expenses) and $1,155.42 to satisfy the Hospital Care Assurance Program (“HCAP”) lien. Proffer at 1-2. 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 the following compensation:

1. A lump sum payment of $73,880.00, representing compensation in the amounts of $72,500.00 for pain and suffering and $1,380.00 for actual unreimbursable expenses in the form of a check payable to Petitioner.

2. A lump sum payment of $1,155.42, representing compensation for satisfaction of the HCAP lien, payable jointly to Petitioner and:

Miami Valley Hospital

1 Wyoming Street Dayton, OH 45409-2722

Patient Account No. 105026055

Petitioner agrees to endorse the check to Miami Valley Hospital. 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 ANDREA ELLINGTON,

Petitioner,

No. 19-1866V v. Chief Special Master Corcoran (SPU)

ECF SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 10, 2019, Andrea Ellington (“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 she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on October 6, 2018. Petition at 1.

On May 6, 2021, 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 May 12, 2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 27; ECF No. 28. I. Items of Compensation

A. Pain and Suffering Respondent proffers that petitioner should be awarded $72,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Additionally, Miami Valley Hospital provided medical services to petitioner under Ohio’s Hospital Care Assurance Program (“HCAP”), for which they are asserting a lien. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the total amount of $2,535.42. See 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is 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 two lump sum payments 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 $73,880.00, representing $72,500.00 for pain and suffering and $1,380.00 for personally-incurred past unreimbursable expenses, in the form of a check payable to petitioner; 2 and

• A lump sum payment of $1,155.42, representing compensation for satisfaction of an

HCAP lien, in the form of a check payable jointly to petitioner and:

Miami Valley Hospital 1 Wyoming Street Dayton, OH 45409-2722 Patient Account No. 105026055

Petitioner agrees to endorse the check to Miami Valley Hospital.

Respectfully submitted, BRIAN M. BOYNTON Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division TRACI R. PATTON Assistant Director Torts Branch, Civil Division s/ Adriana Teitel ADRIANA TEITEL Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-3677

Dated: June 29, 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 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. 2 Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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