Raftery v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1401V

KIMBERLY G. RAFTERY, Chief Special Master Corcoran Petitioner, Filed: February 21, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Elizabeth Martin Muldowney, Sands Anderson PC, Richmond, VA, for Petitioner.

Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On September 29, 2022, Kimberly G. Raftery 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 Table injury – shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) and/or tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccination administered on September 18, 2020. Petition at 1.The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 23, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a Table SIRVA. On February 14, 2025, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $46,000.00 in pain and suffering and $5,075.00 in past unreimbursable expenses. 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 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). at 1-2. 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 $51,075.00 (representing $46,000.00 in pain and suffering and $5,075.00 in past unreimbursable expenses) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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 ) KIMBERLY G. RAFTERY, ) ) Petitioner, ) ) No. 22-1401V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On September 29, 2022, Kimberly G. Raftery (“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 Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine and influenza (“flu”) vaccine she received on September 18, 2020. Petition, ECF No. 1 at 1, 8-9. On February 22, 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.

ECF No. 23. On February 23, 2024, the Court issued a Ruling on Entitlement finding that petitioner is entitled to compensation. ECF No. 24.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $46,000.00 in pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $5,075.00. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is 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 Special Master’s decision and the Court’s judgment award the following 1: a lump sum payment of $51,075.00, to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner.

Respectfully submitted, BRETT A. SHUMATE Acting Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division VORIS E. JOHNSON, JR. Assistant Director Torts Branch, Civil Division 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. /s/ Jamica M. Littles JAMICA M. LITTLES Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-4014 Email: [email protected] DATED: February 14, 2025