Hutchison v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-0773V UNPUBLISHED

CANDICE E. HUTCHISON, Chief Special Master Corcoran

Petitioner, v. Filed: November 16, 2021 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Damages Decision on Proffer;

Concession; Table Injury; Influenza Respondent. (Flu); Shoulder Injury Related to

Vaccine Administration (SIRVA). Miriam A. Johnson, Berman & Simmons, PA, Lewiston, ME, for Petitioner.

James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES1

On June 25, 2020, Candice E. Hutchison 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 alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered on November 24, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 1, 2021, I issued a ruling that Petitioner was entitled to compensation for her SIRVA. ECF No. 31. On November 16, 2021, Respondent filed a proffer on an award of compensation, to which Petitioner agrees. ECF No. 33 (attached hereto as Exhibit A). 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 $78,168.06 (representing $77,500.00 in pain and suffering, and $668.06 for past unreimbursable expenses). 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 ___________________________________

) CANDICE E. HUTCHISON, )

) Petitioner, )

) No. 20-773V

v. ) Chief Special Master Brian H. Corcoran

) ECF

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

) Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On June 25, 2020, Candice Hutchison (“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 (“flu”) vaccine she received on November 24, 2018. On October 27, 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 November 1, 2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 29; ECF No. 31.

I. Items of Compensation

A. Pain and Suffering Respondent proffers that petitioner should be awarded $77,500.00 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. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $668.06. 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

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 1: a lump sum payment of $78,168.06, in the form of a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Candice Hutchison: $78,168.06

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 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.

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s James V. Lopez .

JAMES V. LOPEZ Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-3655 Fax: (202) 616-4310 Email: [email protected]

Date: November 16, 2021