Pennington v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 24-1178V

AMBER PENNINGTON, Chief Special Master Corcoran Petitioner, Filed: March 24, 2025 v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Jay Travis Williamson, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On August 1, 2024, Amber Pennington 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 from a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered to her on September 27, 2022. Pet., ECF No. 1. Petitioner further alleges that the vaccine was received in the United States, she suffered sequela of her injury for more than six months, and neither Petitioner nor any other party has ever received compensation in the form of an award or settlement for her vaccine-related injury. Id. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 21, 2025, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. ECF No. 16. On March 24, 2025, Respondent filed a Proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $112,500.00 in pain and suffering, $7,325.20 in past unreimbursable expenses, and $2,090.02 in past lost wages. Proffer at 1-2, ECF No. 19. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. See 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 $121,915.22 for pain and suffering, past unreimbursable expenses, and past lost wages 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

AMBER PENNINGTON,

Petitioner,

No. 24-1178 V v. Chief Special Master Corcoran ECF

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On August 1, 2024, Amber Pennington (“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, 42 C.F.R. § 100.3, as the result of an influenza (“flu”) vaccination received on September 27, 2022. Petition at 1. On February 21, 2025, 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 later the same day the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 14, 16.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $112,500.00 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 $7,325.20. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees.

C. Lost Wages

Evidence supplied by petitioner documents that she incurred past lost wages related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past lost wages in the amount of $2,090.02. See 42 U.S.C. § 300aa-15(a)(3)(A). 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 Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $121,915.22 to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Haley Labian: $121,915.22

Respectfully submitted,

YAAKOV M. ROTH

Acting Assistant Attorney General C. SALVATORE D’ALESSIO

Director

Torts Branch, Civil Division

HEATHER L. PEARLMAN

Deputy Director

Torts Branch, Civil Division

LARA A. ENGLUND

Assistant Director

Torts Branch, Civil Division /s/ J. Travis Williamson

J. TRAVIS WILLIAMSON

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) 598-1099

[email protected]

DATED: March 24, 2025