Birch v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1266V

Filed: August 14, 2018

UNPUBLISHED

CHRISTINE ANN BIRCH, Special Processing Unit (SPU);

Petitioner, Damages Decision Based on Proffer;

v. Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine SECRETARY OF HEALTH AND Administration (SIRVA) HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

On September 15, 2017, petitioner 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 left shoulder injury following receipt of her November 18, 2016 influenza vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 5, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for SIRVA. On August 14, 2018, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $100,000.00 for pain and suffering. Proffer at 1. In the Proffer, respondent represented that petitioner

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

agrees with the proffered award. Id. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $100,000.00 for pain and suffering in the form of a check payable to petitioner, Christine Ann Birch. This amount represents compensation for all damages that would be available.

The clerk of the court is directed to enter judgment in accordance with this decision. 3

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey 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

____________________________________

)

CHRISTINE BIRCH, )

)

Petitioner, )

) No. 17-1266V

v. ) Chief Special Master Dorsey ) ECF

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On June 29, 2018, respondent filed a Vaccine Rule 4(c) report concluding that petitioner

suffered an injury that is compensable under the National Childhood Vaccine Injury Act of 1986,

as amended, 42 U.S.C. §§300aa-10 to -34. Accordingly, on July 5, 2018, the Chief Special

Master issued a Ruling on Entitlement.

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded

$100,000.00 for pain and suffering which represents all compensation to which petitioner would

be entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made

through a lump sum payment of $100,000.00 in the form of a check payable to petitioner.

Petitioner agrees.

1 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 medical expenses, future lost earnings, and future pain and suffering.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

s/Christine Mary Becer CHRISTINE MARY BECER 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) 616-3665

Date: August 14, 2018