Colbert v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-166V Filed: August 9, 2022 UNPUBLISHED

LISA COLBERT, Special Master Horner

Petitioner, v. Damages Decision Based on Proffer;

Tetanus diphtheria acellular pertussis SECRETARY OF HEALTH AND (“Tdap”) Vaccine; Shoulder Injury HUMAN SERVICES, Related to Vaccine Administration

(“SIRVA”) Respondent.

John Robert Howie Jr., Howie Law, P.C., for petitioner.

Ryan Pyles, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On February 1, 2018, Lisa Colbert 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 pain and dysfunction in her left shoulder caused-in-fact by her Tdap vaccination. (ECF No. 57.)

On May 27, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for impingement, subacromial / subdeltoid bursitis, and subscapularis tendinosis caused-in-fact by her February 2, 2015 Tdap vaccination. On August 9, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $57,500.00. (ECF No. 68) 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.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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

Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $57,500.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a).

The clerk of the court is directed to enter judgment in accordance with this decision. 3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner 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.

THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

LISA COLBERT,

Petitioner, v. No. 18-166V

Special Master Daniel T. Horner SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On May 27, 2022, the Court found petitioner entitled to compensation. ECF No. 63 (Ruling on Entitlement).1 Respondent now proffers that petitioner be awarded a lump sum of $57,500.00, in the form of a check payable to petitioner, for all damages available pursuant to 42 U.S.C. § 300aa-15(a).2 The whole of this amount represents an award for actual and projected pain and suffering at net present value. Petitioner is a competent adult, and accordingly, guardianship documentation is not required.

Petitioner has reviewed the foregoing and concurs. Petitioner agrees with the proffered award of $57,500.00.3

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 TRACI R. PATTON Assistant Director Torts Branch, Civil Division s/ RYAN D. PYLES RYAN D. PYLES Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 Tel: (202) 616-9847 [email protected]

Dated: August 9, 2022