United States Court of Federal Claims, 2023

Cicarelli v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided November 17, 2023 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0032V

CHINA CICARELLI, Chief Special Master Corcoran Petitioner, v. Filed: October 17, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jessica Ann Wallace, Siri & Glimstad LLP, Aventura, FL, for Petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES1 On January 10, 2022, China Cicarelli 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”) following receipt of an influenza (“flu”) vaccine on March 2, 2021.

Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 3, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On October 17, 2023, Respondent filed a proffer on award of compensation (“Proffer”). Respondent represented that Petitioner agrees with the proffered award. Id. at 1 – 2. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer.

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).

Pursuant to the terms stated in the attached Proffer, I award the following: A. A lump sum payment of $95,250.00 (representing $95,000.00 for pain and suffering, and $250.00 for past unreimbursable expenses) in the form of a check payable to Petitioner.

B. A lump sum payment of $577.96, representing compensation for satisfaction of an Optum Medicaid lien, in the form of a check payable jointly to Petitioner and: Optum P.O. Box 182643 Columbus, OH 43218 Event ID: 113759413 Tax ID: XX-XXXXXXX Petitioner agrees to endorse this check to Optum.

These amounts represent 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

CHINA CICARELLI, Petitioner, v. No. 22-32V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On January 10, 2022, China Cicarelli (“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 Table shoulder injury related to vaccine administration (“SIRVA”), as the result of an influenza (“flu”) vaccination she received on March 2, 2021. Petition at 1. On June 30, 2023, 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 for a SIRVA Table injury, and on July 3, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 24; ECF No. 25.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $90,000.00 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 she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $250.00. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees.

C. Optum Medicaid Lien Respondent proffers that China Cicarelli should be awarded funds to satisfy an Optum Medicaid Lien in the amount of $577.96, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action may have against any individual as a result of any Medicaid payments that Optum has made to or on behalf of China Cicarelli from the date of her eligibility for benefits through the date of judgment in this case as a result of her vaccine-related injury suffered on or about March 2, 2021, under Title XIX of the Social Security Act.

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 lump sum payments as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following 1: A. A lump sum payment of $95,250.00, in the form of a check payable to petitioner.

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

B. A lump payment of $577.96, representing compensation for satisfaction of an Optum Medicaid lien, payable jointly to petitioner and Optum P.O. Box 182643 Columbus OH, 43218 Event ID: 113759413 Tax ID: XX-XXXXXXX Petitioner agrees to endorse this check to Optum.

III. Summary of Recommended Payments Following Judgment A. Lump sum payable to petitioner, China Cicarelli. $95,250.00 B. Medicaid lien $577.96

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 CHRISTINE M. BECER Trial Attorney Torts Branch, Civil Division /s/ Zoë R. Wade ZOË R. WADE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel.: (202) 598-7696 Date: October 17, 2023 [email protected]

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