United States Court of Federal Claims, 2022

Hertzog v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided March 10, 2022 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-1339V UNPUBLISHED

PATRICIA HERTZOG, Chief Special Master Corcoran

Petitioner, Filed: February 7, 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)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner. Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On October 7, 2020, Patricia Hertzog 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 left shoulder injuries related to vaccine administration (“SIRVA”) as a result of an influenza vaccine received on September 24, 2018. Petition at 1. Petitioner further alleges the vaccine was received in the United States, her condition persisted for more than six months, and neither Petitioner, nor any other party, has ever filed an action or received compensation in the form of an award or settlement for Petitioner’s vaccine-related injury. Petition at ¶¶ 2, 10-12. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 3, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On February 4, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $97,107.62. Proffer at 1. 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 $97,107.62 (comprised of $95,000.00 for pain and suffering and $2,107.62 for unreimbursable medical 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 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

PATRICIA HERTZOG, )

) Petitioner, )

) v. ) No. 20-1339V

) Chief Special Master Brian Corcoran SECRETARY OF ) HEALTH AND HUMAN SERVICES, )

) Respondent. )

) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On February 1, 2022, respondent filed a Vaccine Rule 4(c) report concluding that petitioner suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) within the Table timeframe following an influenza vaccination, which was compensable under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 to -34. Accordingly, on February 3, 2022, the Chief Special Master issued a Ruling on Entitlement. I. Items of Compensation

Respondent proffers that petitioner should be awarded $95,000.00 for pain and suffering and $2,107.62 for unreimbursable medical expenses. 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

Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $97,107.62 in the form of a check payable to petitioner. 1 This lump sum payment represents all elements of compensation to which petitioner would be 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.

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 TRACI R. PATTON Assistant Director Torts Branch, Civil Division s/ LARA A. ENGLUND LARA A. ENGLUND Assistant Director Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 Tel: (202) 307-3013 E-mail: [email protected] Dated: February 4, 2022

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 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 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 pain and suffering, and future lost wages.

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