Fisher v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1579V

SHERRYL FISHER, Chief Special Master Corcoran Petitioner, v. Filed: July 18, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

David Gregory Rogers, Rogers, Hofrichter & Karrh, LLC, Fayetteville, GA, for Petitioner.

Camille Jordan Webster, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On October 24, 2022, Sherryl Fisher filed a petition2 for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination she received on October 20, 2021. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 30, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation. On July 18, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $89,322.18, consisting of $87,500.00 in pain and suffering and $1,822.18 in past unreimbursable expenses. Proffer at 1-2. In the Proffer, Respondent represented that Petitioner agrees with the proffered 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.

On April 29, 2024, Petitioner filed an amended petition. ECF No. 26.

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). 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 $89,322.18 (consisting of $87,500.00, in pain and suffering and $1,822.18, in 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.4 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

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

SHERRYL FISHER, Petitioner, No. 22-1579V Chief Special Master Brian H. Corcoran v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On April 29, 2024, Sherryl Fisher (“petitioner”) filed an amended petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, as amended (the “Vaccine Act”), 42 U.S.C. §§ 300aa-1 to -34. Petitioner alleges that she received an influenza (“flu”) vaccination on October 20, 2021, and thereafter suffered from a left shoulder injury related to vaccine administration (“SIRVA”). 1 Amended Petition (“Pet.”) at 1.

On April 30, 2024, 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 that same day, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 27; ECF No. 28.

Petitioner initially filed a petition on August 1, 2023, alleging the flu vaccination administered to her on October 20, 2021, caused petitioner to develop neuropathy. ECF No. 1.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $87,500.00 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 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 $1,822.18. 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 following2: a lump sum payment of $89,322.18, in the form of a check payable to petitioner.

III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Sherryl Fisher: $89,322.18

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.

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 LARA A. ENGLUND Assistant Director Torts Branch, Civil Division /s/CAMILLE J. WEBSTER CAMILLE J. WEBSTER Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 307-3241 Email: [email protected] Dated: July 18, 2024