Au v. Secretary of Health and Human Services

]n tbe fflntteb ~tate1) QCourt of jfeberal QCiattn$ OFFICE OF SPECIAL MASTERS No. 23-0216V

ANSON K. AU, Chief Special Master Corcoran Petitioner, Filed : November 29, 2023 V. SECRETARY OF HEALTH AND !HUMAN SERVICES, Responde nt.

John Leonard Shipley, Davis, CA, for Petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On February 14, 2023, Anson K. Au 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"), a defined Table injury, or in the alternative a caused-in-fact injury , after receiving an influenza ("flu") vaccine on January 13, 2022, intramuscularly in his left deltoid. Petition at 1, 1l1l 2, 23. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 21 , 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. On November 29, 2023, Respondent filed a proffer on award of compensation ("Proffer") indicating Petitioner should be awarded $60,000.00 for actual and projected pain and suffering. Proffer at 1, 1 n.1. In the Proffer, 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 w ith access to t he 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 (201 8).

Respondent represented that Petitioner agrees with the proffered award. Id. at 1. 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 $60,000.00, representing compensation for actual and projected pain and suffering,3 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

3 As required by the Vaccine Act and stated in the Proffer, the amount awarded for projected pain and suffering has been reduced to its net present value. Section 15(f)(4)(A); Proffer at 1 n.1.

4 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

ANSON K. AU, Petitioner, v. No. 23-216V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On February 14, 2023, Anson K. Au (petitioner) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, alleging that he received an influenza vaccination on January 13, 2022, and thereafter suffered from a shoulder injury related to vaccine administration (SIRVA). See Petition. On September 21, 2023, the Secretary of Health and Human Services (respondent) filed his Rule 4(c) Report recommending that compensation be awarded. ECF No. 13. Also on September 21, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation.

ECF No. 14. Respondent now proffers the following compensation: A lump sum of $60,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages available under U.S.C. § 300aa-15(a).1 Petitioner agrees with the foregoing proffered award.2 Petitioner is a competent adult.

Evidence of guardianship is not required in this case.

This amount represents an award for actual and projected pain and suffering at net present value. This proffer does not include any award for attorneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e).

Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D' ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director T01is Branch, Civil Division TRACI R. PATTON Assistant Director T01is Branch, Civil Division sf RYAND. PYLES RYAND. PYLES Senior Trial Attorney T01is Branch, Civil Division U.S. Depa1iment of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-9847 iyan.pyles@usdoj .gov DATED: November 29, 2023

Should petitioner die prior to entry of judgment, the paiiies reserve the right to move the Comi for appropriate relief. In paiiiculai·, respondent would oppose any award for futme lost eainings, futme expenses, and futme pain and suffering.