United States Court of Federal Claims, 2022

Mundinger v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided March 1, 2022 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1804V UNPUBLISHED

CONNIE SUZANN MUNDINGER,

Chief Special Master Corcoran Petitioner,

v. Filed: January 20, 2022 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). Robert David Proffitt, Proffitt & Cox, LLP, Columbia, SC, for Petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES1

On November 25, 2019, Connie Suzann Mundinger 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 left shoulder injury related to vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered on October 6, 2018. Petition at 1-2. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 1, 2021, I issued a ruling that Petitioner was entitled to compensation for her SIRVA. ECF No. 47. On January 20, 2022, Respondent filed a proffer on an award of compensation, to which Petitioner agrees. ECF No. 54 (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 $45,990.62 (representing $45,000.00 for pain and suffering, and $990.62 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

CONNIE SUZANN MUNDINGER, )

)

Petitioner, ) No. 19-1804V

) Chief Special Master v. ) Brian H. Corcoran

) SPU

SECRETARY OF HEALTH ) AND HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION On November 25, 2019, Connie Suzann Mundinger (“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. On June 17, 2021, the Court issued Findings of Fact and Conclusions of Law, finding that the alleged causal vaccine was administered in petitioner’s left deltoid, and that the onset of petitioner’s SIRVA occurred within 48 hours of vaccination. ECF No. 40. On September 30, 2021, respondent filed his Rule 4(c) Report, advising the Court that, given the Court’s Findings of Fact, respondent would not defend the case on other grounds in proceedings before the Office of Special Masters. ECF No. 46. On October 1, 2021, Chief Special Master Corcoran found petitioner entitled to compensation for her left shoulder SIRVA injury. ECF No. 47.

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded $45,990.62. This award is comprised of $45,000.00 for pain and suffering and $990.62 for past unreimbursable out-of-pocket expenses. This represents all elements of compensation to which petitioner would be 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 a lump sum payment of $45,990.62, in the form of a check made payable to petitioner. 1 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 s/Althea Walker Davis ALTHEA WALKER DAVIS Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515 [email protected]

DATED:

1 Because this unpublished opinion 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 opinion will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioners have 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 section 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 the 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 lost earnings, and future pain and suffering.

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