Wyffels v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1874V UNPUBLISHED

DOREEN WYFFELS, Chief Special Master Corcoran Petitioner, Filed: August 12, 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)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On December 6, 2018, Doreen Wyffels 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 she received on October 4, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On March 2, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 12, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $79,017.68 (comprised of $77,500.00 for pain and suffering and $1,517,68 for unreimbursable medical expenses). Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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 $79,017.68 (comprised of $77,500.00 for pain and suffering and $1,517.68 for unreimbursable medical expenses) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 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 DOREEN WYFFELS, ) ) Petitioner, ) ) v. ) No. 18-1874V ) Chief Special Master Brian H. Corcoran SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 6, 2018, Doreen Wyffels (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”), 42 U.S.C. §§ 300aa-1 to -34, alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receipt of an influenza vaccination administered on October 4, 2017. See Petition at 1. On January 26, 2021, the Chief Special Master issued Findings of Fact, finding that the onset of petitioner’s symptoms was “consistent with the Table requirements of a SIRVA claim.” ECF No. 27 at 6. On February 27, 2021, respondent filed an Amended Vaccine Rule 4(c) report concluding that petitioner had otherwise satisfied the requirements of a Table SIRVA claim, and requesting that the Chief Special Master decide the issue of entitlement. ECF No. 28 at 6. Accordingly, on March 2, 2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 29.

I. Items of Compensation Respondent proffers that petitioner should be awarded $77,500.00 for pain and suffering and $1,517.68 for unreimbursable medical expenses. These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. 1 II. Form of the Award Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $79,017.68 in the form of a check payable to petitioner. 2 This lump sum payment represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 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 Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

The parties have no objection to the amount of the proffered award of damages. Assuming that the Chief Special Master issues a damages decision in conformity with this proffer, the parties waive their right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s January 26, 2021 Findings of Fact.

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/ LARA A. ENGLUND LARA A. ENGLUND Assistant Director Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 Tel: (202) 307-3013 E-mail: [email protected] Dated: August 12, 2021