Wyman v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1032V

NORA WYMAN, Chief Special Master Corcoran Petitioner, v. Filed: March 26, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

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

Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On March 5, 2021, Nora Wyman 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 Table shoulder injury related to vaccine administration (“SIRVA”), as the result of an influenza (“flu”) vaccination received on September 30, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 14, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation. On March 26, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $98,701.86, consisting of $95,000.00 for pain and suffering and $3,701.86 for unreimbursed out-of- 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.

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). pocket medical expenses. 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 $98,701.86, (consisting of $95,000.00 for pain and suffering and $3,701.86 for unreimbursed out-of-pocket medical 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.3 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

NORA WYMAN, Petitioner, Case No. 21-1032V (ECF) v. CHIEF SPECIAL MASTER CORCORAN SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Procedural History On March 5, 2021, Nora Wyman (“petitioner”) filed a petition for compensation (“Pet.”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“the Vaccine Act” or “the Act”). Petitioner alleged that as a result of an influenza (“flu”) vaccine that was administered on September 30, 2020, she suffered a right shoulder injury related to vaccine administration (“SIRVA”). Pet. at 1.

On August 7, 2023, respondent filed his Rule 4(c) Report conceding entitlement under the Act. Rule 4(c) Report at 1, 5 [ECF Doc. No. 23]. On August 14, 2023, the Court issued its Ruling on Entitlement finding that petitioner is entitled to compensation under the Act. Ruling on Entitlement at 2 [ECF Doc. No. 24].

II. Items of Compensation and Form of the Award Based upon the evidence of record, respondent proffers that petitioner should be awarded $98,701.86. The award is comprised of the following: $95,000.00 for pain and suffering and $3,701.86 for unreimbursed out-of-pocket medical expenses. This amount represents all elements of compensation to which petitioner would be entitled under U.S.C. § 300aa-15(a) regarding her September 30, 2020 flu vaccination. Petitioner agrees.

III. Form of the Award The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $98,701.86, in the form of a check payable to petitioner.

Petitioner agrees.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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/ Mark K. Hellie MARK K. HELLIE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 T: (202) 616-4208 E: [email protected] DATED: March 26, 2024