Flores v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1858V

GABRIEL FLORES, Chief Special Master Corcoran Petitioner, Filed: January 24, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Brynna Gang, Kraus Law Group, LLC, Chicago, IL, for Petitioner.

Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On December 15, 2020, Gabriel Flores 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 Table injury – a shoulder injury related to vaccine administration (“SIRVA”) - as a result of his receipt of the flu vaccine on September 27, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. Because the parties could not informally resolve the issue of damages, they were ordered to file briefs setting forth their respective arguments and were notified that I would resolve this dispute via an expedited “Motions Day” hearing, which took place on January 24, 2025.

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).

Petitioner seeks an award of $85,000.00 in compensation for Petitioner’s actual pain and suffering, while Respondent recommends an award of $60,000.00. (Pain and suffering was the only element of damages in dispute at the hearing). 3 After listening to the arguments of both sides, I issued an oral ruling on damages constituting my findings of fact and conclusions of law, pursuant to Section 12(d)(3)(A), at the conclusion of the January 24, 2025 hearing. An official recording of the proceeding was taken by a court reporter, although a transcript has not yet been filed in this matter. I hereby fully adopt and incorporate that oral ruling as officially recorded. As discussed during my oral ruling, in another recent decision I discussed at length the legal standard to be considered in determining damages and prior SIRVA compensation within SPU. I fully adopt and hereby incorporate my prior discussion in Sections I and II of Yodowitz v. Sec'y of Health & Hum. Servs., No. 21-0370V, 2024 WL 4284926, at *1-3 (Fed. Cl. Aug.

23, 2024) to the instant ruling and decision. Additionally, the official recording of my oral ruling includes my discussion of various comparable cases as well as specific facts relating to Petitioner’s medical history and experience that further informed my decision awarding damages herein.

Based on my consideration of the complete record as a whole and for the reasons discussed in my oral ruling, pursuant to Section 12(d)(3)(A), I find that $72,500.00 represents a fair and appropriate amount of compensation for Petitioner’s actual pain and suffering. 4 I also find that Petitioner is entitled to $684.40 in actual unreimbursable expenses.

Accordingly, I award Petitioner a lump sum of $73,184.40 (representing an award of $72,500.00 for pain and suffering and $684.40 for unreimbursed expenses) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. This amount represents compensation for all damages that would be available under Section 15(a).

3 Respondent raised in passing certain objections to requested prescription expenses at the January 24, 2025 hearing. But Respondent indicated in his damages brief that he had no objection to Petitioner’s unreimbursed expenses. ECF No. 43 at 13, n. 3. Petitioner confirmed at the January 24, 2025 hearing that the unreimbursed expenses sought in this case is $684.40. Ex. 11; ECF No. 30 at 19. Accordingly, I am awarding that amount.

4 Since this amount is being awarded for actual, rather than projected, pain and suffering, no reduction to net present value is required. See Section 15(f)(4)(A); Childers v. Sec’y of Health & Hum. Servs., No. 96- 0194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 1999) (citing Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552 (Fed. Cir. 1994)).

The Clerk of Court is directed to enter judgment in accordance with this Decision.5 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

5 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.