Boice v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0574V

DEBORA BOICE, Chief Special Master Corcoran Petitioner, Filed: January 26, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Howard Scott Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for Petitioner.

Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On January 12, 2021, Debora Boice filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On January 8, 2023, Petitioner filed an amended petition. Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on October 23, 2018. Amended Petition at 1. Petitioner further alleges that the vaccine was received in the United States, her symptoms have continued for more than six months, and she has never received compensation in the form of an award or settlement for her injuries. Amended Petition at ¶¶ 3, 14, 17; Ex. 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 22, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On January 26, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $100,000.00.

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 $100,000.00 (for past 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) DEBORA BOICE, ) ) Petitioner, ) No. 21-574V ECF ) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________) PROFFER ON AWARD OF COMPENSATION 1 I. Procedural History On January 12, 2021, Debora Boice (“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 administratio n (“SIRVA”), as the result of an influenza (“flu”) vaccination received on October 23, 2018.

Petition at 1. On November 20, 2023, respondent filed his Vaccine Rule 4(c) Report, concluding that petitioner suffered from SIRVA as defined by the Vaccine Injury Table, within the Table timeframe. ECF No. 35. On November 22, 2023, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for a SIRVA Table injury.

ECF No. 36.

1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued.

II. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded a lump sum of $100,000.00 for past pain and suffering. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

III. Form of the Award 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: A lump sum payment of $100,000.00 in the form of a check payable to petitioner.2 Petitioner agrees.

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 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. s/ Joseph A. Lewis JOSEPH A. LEWIS 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) 451-7495 E: [email protected] DATED: January 26, 2024