Corter v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-1807V UNPUBLISHED

WALTER CORTER, Chief Special Master Corcoran

Petitioner, v. Filed: August 5, 2022 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Damages Decision based on Proffer;

Influenza (Flu) Vaccine; Shoulder Respondent. Injury Related to Vaccine

Administration (SIRVA) Jessica Anne Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner. Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES1

On December 9, 2020, Walter Corter 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 that as a result of an influenza (“flu”) vaccine received on October 30, 2019, he suffered a shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 5, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 4, 2022, Respondent filed a proffer on award of compensation. Proffer at 1-2. 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 $64,136.85 (representing $62,500.00 for pain and suffering, and $1,636.85 for past unreimbursable 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

)

WALTER CORTER, )

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Petitioner, )

) No. 20-1807V v. ) Chief Special Master Corcoran

) ECF

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

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Respondent. )

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RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 9, 2020, Walter Corter (“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. The petition alleges that as a result of receiving an influenza (“flu”) vaccination on October 30, 2019, petitioner suffered from a left shoulder injury related to vaccine administration (“SIRVA”). See Petition at 1, 4. On June 30, 2022, 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. ECF No. 33. On July 5, 2022, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 35.

I. Items of Compensation

A. Pain and Suffering Respondent proffers that petitioner should be awarded $62,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $1,636.85. See 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees.

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

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 1: a lump sum payment of $64,136.85, in the form of a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Walter Corter: $64,136.85

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 1Should 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, unreimbursed expenses, future lost earnings and future pain and suffering.

TRACI R. PATTON Assistant Director Torts Branch, Civil Division /s/ Meghan R. Murphy MEGHAN R. MURPHY 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) 616-4264 [email protected]

DATED: August 4, 2022