Pugh v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-101V

DEMETRIUS PUGH, Chief Special Master Corcoran Petitioner, Filed: April 18, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jubaile Abila, Groth Law Firm, S.C., Brookfield, WI, for Petitioner.

Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On January 26, 2023, Demetrius Pugh 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered to him on October 8, 2021. Pet., ECF No. 1. Petitioner further alleges that the vaccine was received in the United States, he suffered sequela of his injury for more than six months, and neither Petitioner nor any other party has ever received compensation in the form of an award or settlement for his vaccine-related injury. Id. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On December 18, 2023, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. ECF No. 22. On April 17, 2024, Respondent filed 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). a Proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $80,000.00 in pain and suffering. Proffer at 1, ECF No. 28. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. See 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 $80,000.00 for 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

DEMETRIUS PUGH, Petitioner, No. 23-101V v. Chief Special Master Corcoran SPU SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On January 26, 2023, petitioner Demetrius Pugh (“petitioner”) filed a petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to –34, as amended (“Vaccine Act” or “Act”). Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza vaccination administered on October 8, 2021. Petition at 1, 6.

On December 15, 2023, respondent filed his Vaccine Rule 4(c) report, recommending that compensation be awarded. ECF No. 20. On December 18, 2023, this Court issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 22.

I. Items of Compensation Respondent proffers that petitioner should be awarded $80,000.00, consisting entirely of compensation for pain and suffering. This represents all elements of compensation to which petitioner would be 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 $80,000.00, representing compensation for all elements of economic and noneconomic damages, in the form of a check payable to petitioner, Demetrius Pugh.

III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Demetrius Pugh: $80,000.00.

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

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. s/ Jennifer A. Shah Jennifer A. Shah 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) 305-2181 [email protected] Dated: April 17, 2024