Shaw v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-0542V UNPUBLISHED

CYNTHIA SHAW, Chief Special Master Corcoran

Petitioner, Filed: September 1, 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)

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On May 1, 2020, Cynthia Shaw 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 to her on September 14, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 23, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a left SIRVA. On September 1, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a lump sum payment of $113,705.67. Proffer at 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 $113,705.67 in the form of a check payable to Petitioner. This consists of (1) $112,500.00 in actual pain and suffering; (2) $498.12 in past unreimbursable expenses; and (3) $707.55 in past lost wages.

These amounts represent 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 ___________________________________

) CYNTHIA SHAW, )

) Petitioner, )

) No. 20-542V (ECF) v. ) Chief Special Master Corcoran

) SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

) Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On May 1, 2020, Cynthia Shaw (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. Petitioner alleged that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on September 14, 2018. Petition at 1. On July 23, 2021, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report recommending that compensation be awarded, and the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 39; ECF No. 40.

Items of Compensation

Pain and Suffering Respondent proffers that petitioner should be awarded $112,500.00 in actual pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

Past Unreimbursable Expenses Evidence supplied by petitioner documents her expenditure for past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $498.12, as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees.

Lost Wages Evidence supplied by petitioner documents that she incurred past lost wages related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past lost wages in the amount of $707.55. See 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following: a lump sum payment of $113,705.67, representing compensation for actual pain and suffering ($112,500.00), past unreimbursable expenses ($498.12), and lost wages ($707.55), in the form of a check payable to petitioner, Cynthia Shaw. Petitioner agrees.

Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Cynthia Shaw: $ 113,705.67

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 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Kimberly S. Davey KIMBERLY S. DAVEY 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) 307-1815 [email protected]

DATED: August 31, 2021