Rogers v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1714V

SUSAN ROGERS, Chief Special Master Corcoran Petitioner, Filed: January 13, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Richard Gage, Richard Gage, P.C. (WY), Cheyenne, WY, for Petitioner.

Neil Bhargava, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On November 18, 2022, Susan Rogers 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 shoulder injury related to vaccine administration (“SIRVA”) resulting from a tetanus diphtheria acellular pertussis (“Tdap”) vaccine received on September 20, 2020. Petition at 1-2. Petitioner further alleges that the Tdap vaccine was administered in the United States, she suffered residual effects of her injury for more than six months, and neither Petitioner, nor anyone else to her knowledge, has filed, participated in, or collected an award or settlement from any civil action for her vaccine-related injury. Petition at ¶¶ 2, 7, 8. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 30, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On January 6, 2025, Respondent filed a proffer on award 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.

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). compensation (“Proffer”) indicating Petitioner should be awarded $85,000.00. 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 $85,000.00 (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

SUSAN ROGERS, Petitioner, v. No. 22-1714V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On November 18, 2022, Susan Rogers (“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 administration (“SIRVA”), as the result of the tetanus-diphtheria-acellular-pertussis (‘Tdap”) vaccine she received on September 20, 2020. Petition at 1. On July 30, 2024, 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 SIRVA Table injury, and on the same date, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 33, 34.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $85,000.00 in pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4). 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 Special Master’s decision and the Court’s judgment award the following1: A. A lump sum payment of $85,000.00, in the form of a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment A. Lump sum payable to petitioner, Susan Rogers. $85,000.00 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 JULIA M. COLLISON Assistant Director Torts Branch, Civil Division /s/ Neil Bhargava NEIL BHARGAVA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel.: (202) 305-3989 Date: January 6, 2025 [email protected]

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, unreimbursed expenses, future lost earnings and future pain and suffering.