United States Court of Federal Claims, 2022

Kalail v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided September 21, 2022 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-0593V UNPUBLISHED

ANGELA KALAIL, Chief Special Master Corcoran

Petitioner, v. Filed: August 22, 2022 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Damages Decision based on Proffer;

Tetanus-Diphtheria-Acellular Respondent. Pertussis (Tdap) Vaccine; Shoulder

Injury Related to Vaccine Administration (SIRVA).

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES1

On May 12, 2020, Angela Kalail 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 a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine received in her right deltoid on October 31, 2018, she 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 August 8, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 19, 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 $156,150.68 (representing $150,000.00 for actual and projected pain and suffering at net present value, $3,681.45 for past unreimbursed expenses, and $2,469.23 for after-tax net loss of earnings) 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

THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

ANGELA KALAIL,

Petitioner, v. No. 20-593V

Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On August 4, 2022, respondent filed his Rule 4(c) Report, recommending that the Court find petitioner entitled to compensation specifically for a shoulder injury related to vaccine administration (SIRVA) and related sequelae, regarding which petitioner is entitled to a presumption of causation under the Vaccine Injury Table. ECF No. 44. The Court found petitioner entitled to compensation accordingly in an August 8, 2022 Ruling on Entitlement. ECF No. 45. Respondent now proffers that petitioner be awarded a lump sum of $156,150.68, in the form of a check payable to petitioner, for all damages available pursuant to 42 U.S.C. § 300aa-15(a).1 Of this total amount, $150,000.00 represents an award for actual and projected pain and suffering at net present value; $3,681.45 represents an award for past unreimbursed expenses; and $2,469.23 represents an after-tax net loss of earnings. 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 $156,150.68.2

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/ 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 19, 2022

1 Because this unpublished opinion 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 opinion 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. 2 This proffer does not include any award for attorneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e).

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