United States Court of Federal Claims, 2022

Birch v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided July 20, 2022 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-1925V UNPUBLISHED

KATHLYN BIRCH, Chief Special Master Corcoran

Petitioner, Filed: June 15, 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)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On December 17, 2018, Kathlyn Birch 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 that was administered to her on October 6, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 19, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On June 10, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $47,500.00 in pain and suffering. 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 $47,500.00 (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

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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

************************************* KATHLYN BIRCH, *

* Petitioner, * No. 18-1925V

* Chief Special Master Corcoran v. *

* SECRETARY OF HEALTH AND * HUMAN SERVICES, *

* Respondent. *

*************************************

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On November 10, 2021, respondent filed a Rule 4(c) Report, conceding that petitioner’s claim meets the Table criteria for a SIRVA injury. On November 19, 2021, the Court issued a Ruling on Entitlement finding petitioner entitled to compensation under the Vaccine Act.1 I. Items of Compensation

Pain and Suffering Respondent proffers that petitioner should be awarded $47,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). The above amount 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

Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that petitioner be awarded a lump sum payment of $47,500.00, in the form of a check payable to petitioner. Petitioner agrees.

Respectfully submitted, BRIAN M. BOYNTON Principal Deputy 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/ DEBRA A. FILTEAU BEGLEY DEBRA A. FILTEAU BEGLEY Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4181

Dated: June 10, 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). 1 During the pendency of this case, petitioner was married, and on June 9, 2022, the caption was amended to change her name from Kathlyn Haynes to Kathlyn Birch.

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