Borders v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-169V Filed: June 12, 2019 UNPUBLISHED

WENDY BORDERS,

Petitioner, v. Special Processing Unit (SPU);

Damages Decision Based on Proffer;

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

Respondent.

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner. Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On February 6, 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 “left shoulder injuries” that were “caused in fact” by an influenza (“flu”) vaccine petitioner received on October 15, 2015.” Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On May 31, 2019, a ruling on entitlement was issued, finding petitioner entitled to compensation for shoulder injury. On June 6, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $70,197.39. Proffer

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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). 2 National 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).

at 2. In the Proffer, respondent represented that petitioner 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 $70,197.39, representing compensation for pain and suffering ($65,000.00) and past unreimbursable expenses ($5,197.39), in the form of a check payable to petitioner, Wendy Borders. This amount represents compensation for all damages that would be available under § 15(a).

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

WENDY BORDERS,

Petitioner, No. 17-169V v. Chief Special Master Dorsey ECF SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

PROFFER ON AWARD OF DAMAGES

On February 6, 2017, Wendy Borders (“petitioner”) filed a petition for compensation

(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34 (“Vaccine Act” or “Act”), as amended. The petition alleged that an influenza vaccination that

petitioner received on October 21, 2015, caused-in-fact left shoulder injuries. After the Chief

Special Master made binding factual findings in this case, respondent filed his Rule 4(c) Report,

recommending that the Chief Special Master decide the issue of entitlement based on the record.

On May 31, 2019, the Chief Special Master found petitioner entitled to compensation.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $65,000.00 in actual and projected

pain and suffering. This amount reflects that any award for projected pain and suffering has

been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses

Evidence supplied by petitioner documents her expenditure of past unreimbursable

expenses related to her vaccine-related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $5,197.39. Petitioner agrees.

II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $70,197.39, representing compensation for pain and suffering

($65,000.00) and past unreimbursable expenses ($5,197.39), in the form of a check payable to

petitioner. 1 This lump sum payment represents all elements of compensation to which petitioner

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

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

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

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division

s/Jennifer L. Reynaud JENNIFER L. REYNAUD 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) 305-1586 Date: June 6, 2019

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 pain and suffering, and future lost wages.