McNamara v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1614V UNPUBLISHED

ERICA MCNAMARA, Chief Special Master Corcoran

Petitioner, Filed: August 16, 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) Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On October 16, 2019, Erica McNamara 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 a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine that was administered to her on June 9, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 3, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 16, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $63,378.28 (consisting of $62,500.00 for past pain and suffering and $878.28 for past unreimbursed expenses). 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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).

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 a lump sum payment of $63,378.28 (consisting of $62,500.00 for past pain and suffering and $878.28 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 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS ___________________________________

) ERICA MCNAMARA, )

) Petitioner, ) No. 19-1614V ECF

)

v. ) Chief Special Master Corcoran

) SECRETARY OF HEALTH ) AND HUMAN SERVICES, )

) Respondent. )

___________________________________ )

PROFFER ON AWARD OF COMPENSATION1 I. Procedural History

On October 16, 2019, Erica McNamara (“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. Petitioner alleges that she suffered a left-side Shoulder Injury Related to Vaccine Administration (“SIRVA”) resulting from a tetanus- diphtheria-acellular pertussis (“Tdap”) vaccination administered on June 9, 2018. See Petition. On May 27, 2021, respondent filed his Vaccine Rule 4(c) report, conceding a Table injury for SIRVA. ECF No. 33. On June 3, 2021, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for SIRVA. ECF No. 34. II. Items of Compensation

Based upon the evidence, respondent proffers that petitioner should be awarded a lump sum of $63,378.28, consisting of $62,500.00 for past pain and suffering, and $878.28 for past unreimbursed expenses. This amount represents all elements of compensation to which petitioner is 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. III. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $63,378.28, in the form of a check payable to petitioner.2 Petitioner agrees.

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 /s/Darryl R. Wishard DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4357

Dated: August 16, 2021 Fax: (202) 616-4310

Email: [email protected]