Clifton v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1813V Filed: June 23, 2025 ************************* * * LINDA CHARLENE CLIFTON, * * * Petitioner, * * v. * * * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * * Respondent. * * ************************* * Robert Goodwin, Walsh Roberts & Grace, Buffalo, NY, for Petitioner Catherine Stolar, U.S. Department of Justice, Washington, DC, for Respondent

DECISION AWARDING DAMAGES1 On December 8, 2020, Linda Charlene Clifton (“Petitioner”) filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“the Vaccine Program”).2 Pet., ECF No. 1. Petitioner alleges that she developed a left shoulder injury related to vaccine administration (“SIRVA”) from the tetanus diphtheria acellular pertussis (“Tdap”) vaccine she received on December 20, 2017. See Pet. at 1, 4; see also ECF No. 63 (“Proffer”) at 1. On February 4, 2022, Respondent filed a Rule 4(c) Report conceding entitlement. ECF No. 26.

Because this Decision contains a reasoned explanation for the action 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.

The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”). All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

On the same day, former Special Master Katherine E. Oler issued a Ruling on Entitlement finding that Petitioner was entitled to compensation. ECF No. 27.

Respondent filed a Proffer on June 23, 2025. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Proffer at 1-2. 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 of $116,240.64, which amount represents pain and suffering ($115,000.00), and past unreimbursed expenses ($1,240.64), to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner.

Proffer at 1-2. These amounts represent all elements of compensation for all damages that would be available under § 300aa-15(a).

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith.3 IT IS SO ORDERED.

s/ Jennifer A. Shah Jennifer A. Shah Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) LINDA CHARLENE CLIFTON, ) ) Petitioner, ) ) No. 20-1813V v. ) Special Master Shah ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 8, 2020, Linda Charlene Clifton (“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 acellular pertussis (“Tdap”) vaccine she received on December 20, 2017.

Petition at 1, 4. On February 4, 2022, 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 Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 26; ECF No. 27.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $115,000.00 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 $1,240.64. 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 following1: a lump sum payment of $116,240.64, to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner.

Respectfully submitted, BRETT A. SHUMATE Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division COLLEEN C. HARTLEY 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/ Catherine E. Stolar CATHERINE E. STOLAR 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) 353-3299 Email: [email protected]

DATED: June 23, 2025