United States Court of Federal Claims, 2023

Buck v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided December 19, 2023 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1301V

MARTHA BUCK, Chief Special Master Corcoran

Petitioner, Filed: November 17, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

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

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On August 27, 2019, Martha Buck 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”) resulting from an influenza (“flu”) vaccine received in her left deltoid on December 24, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 23, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On November 16, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $35,000.00. Proffer at 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 $35,000.00 (in 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

)

MARTHA BUCK, )

)

Petitioner, )

) No. 19-1301V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On August 27, 2019, Martha Buck (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine she received on December 24, 2017. Petition at 1. On May 13, 2022, petitioner filed a Motion for a Ruling on the Record (“Motion”) arguing that she had established entitlement to compensation for a SIRVA. ECF No. 30. Respondent filed his Response to petitioner’s Motion on July 27, 2022, recommending that entitlement to compensation be denied. ECF No. 33. Petitioner filed a Reply in support of her Motion on August 3, 2022. ECF No. 34. On August 23, 2023, the Court issued a Ruling on Entitlement, finding petitioner entitled to compensation.1 ECF No. 35.

I. Items of Compensation

A. Pain and Suffering Respondent proffers that petitioner should be awarded $35,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

The above amount represents 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 following2: a lump sum payment of $35,000.00, in the form of a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Martha Buck: $35,000.00

Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/ Catherine E. Stolar CATHERINE E. STOLAR 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) 353-3299 Fax: (202) 616-4310 Email: [email protected] DATED: November 16, 2023

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 (2018). 1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such a damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s August 23, 2023 entitlement decision. 2 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 lost earnings and future pain and suffering.

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