United States Court of Federal Claims, 2024

Yerks v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided January 2, 2024 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1585V

JAMMIE YERKS, Chief Special Master Corcoran Petitioner, Filed: November 22, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jerome A. Konkel, Samster Konkel and Safran, Wauwatosa, WI, for Petitioner.

Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On July 19, 2021, Jammie Yerks 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”) following an influenza vaccination he received on October 17, 2019. Petition at ¶¶2, 14. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On April 14, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. On November 21, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $115,000 in pain and suffering. Proffer at 1. 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.

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 Petitioner a lump sum payment of $115,000.00 in 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 ) JAMMIE YERKS, ) ) Petitioner, ) ) No. 21-1585V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On July 19, 2021, Jammie Yerks (“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 he suffered “left arm pain and disability” following administration of an influenza (“flu”) vaccine he received on October 17, 2019. Petition at 3. On April 13, 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 Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, and on April 14, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner is entitled to compensation. ECF Nos. 26-27.

I. Items of Compensation Based on the evidence of record, respondent proffers that petitioner should be awarded $115,000.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). This amount 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 following1: a lump sum payment of $115,000.00, in the form of a check payable to Jammie Yerks.

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 /s/ AUSTIN J. EGAN Austin J. Egan Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 451-7479 [email protected] Date: November 21, 2023

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.

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