Carter v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1077V

LEAH CARTER, Chief Special Master Corcoran

Petitioner, v. Filed: May 7, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Austin Joel Egan, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On March 18, 2021, Leah Carter 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 shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on or about October 19, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 25, 2023, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. ECF No. 32. On May 6, 2024, Respondent filed a Proffer on award of compensation (“Proffer”). Respondent represented that Petitioner

1 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). agrees with the proffered award. Id. 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 a lump sum payment of $151,823.80 (representing $125,000.00 for pain and suffering, $929.59 for past unreimbursable expenses, and $25,894.21 for past lost wages) in the form of a check payable 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.

2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

) LEAH CARTER, ) ) Petitioner, ) ) No. 21-1077V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER OF DAMAGES

On March 18, 2021, Leah Carter (“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 from a left shoulder injury related to vaccine administration

(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza

(“flu”) vaccine she received on October 19, 2020. Pet. at 1. On September 25, 2023, 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 Table SIRVA injury,

and on the same day, the Chief Special Master issued a Ruling on Entitlement finding petitioner

entitled to compensation. ECF Nos. 31-32.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $125,000.00 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

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

awarded past unreimbursable expenses in the amount of $929.59. 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 $25,894.21. 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 following 1: a lump sum payment of $151,823.80, in the form of

a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Leah Carter: $151,823.80

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

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

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 unreimbursed expenses, future lost earnings, and future pain and suffering.

2 HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

TRACI R. PATTON Assistant Director Torts Branch, Civil Division

/s/ AUSTIN J. EGAN Austin J. Egan Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 451-7479 Austin.J.Egan@usdoj.gov

Date: May 6, 2024