Wenclawiak v. Secretary of Health and Human Services

CORRECTED

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0629V UNPUBLISHED

MICHELE WENCLAWIAK, Chief Special Master Corcoran Petitioner, Filed: February 1, 2022 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)

Emily Beth Ashe, Anapol Weiss, Philadelphia, PA, for Petitioner.

Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On May 21, 2020, Michele Wenclawiak 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 from “severe left shoulder pain, tingling, numbness, weakness and decreased range of motion, which was caused in fact” by an influenza (“flu”) vaccine she received on October 1, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 2, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a left SIRVA. ECF 34. On January 31, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $82,500.00. Proffer at 1. In the Proffer, Respondent represented that Petitioner

Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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.

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). 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 $82,500.00 for pain and suffering 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 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

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.

CORRECTED

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MICHELE WENCLAWIAK, Petitioner, No. 20-629V v. Chief Special Master Corcoran (SPU) ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On May 21, 2020, Michele Wenclawiak (“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”), as amended. Petitioner alleges that she suffers from “severe left shoulder pain, tingling, numbness, weakness and decreased range of motion, which was caused in fact” by an influenza (“flu”) vaccine she received on October 1, 2018. Petition at 1.

On November 1, 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 shoulder injury related to vaccine administration (“SIRVA”) Table injury, and on November 2, 2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 33 and 34.

I. Items of Compensation Respondent proffers that petitioner should be awarded $82,500.00 for pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. This amount 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: a lump sum payment of $82,500.00, in the form of a check payable to petitioner. 1 III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Michele Wenclawiak: $82,500.00 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 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division s/ Adriana Teitel ADRIANA TEITEL Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-3677 Dated: January 31, 2022 Email: [email protected]

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.