Ellis v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-2043V

LINDELL ELLIS, Chief Special Master Corcoran

Petitioner, Filed: July 9, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On November 29, 2023, Lindell Ellis 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 that she suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury or in the alternative caused-in- fact injury, after receiving an influenza vaccine on November 1, 2022. Petition at 1, ¶¶ 4, 27-28. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 20, 2024, I issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On July 9, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $68,588.84, representing Compensation in the amounts of $67,500.00 for pain and suffering and $1,088.84 for past unreimbursable expenses. Proffer at 1-2. In the Proffer, Respondent

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). represented that Petitioner agrees with the proffered award. 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 $68,588.84, representing Compensation in the amounts of $67,500.00 for pain and suffering and $1,088.84 for past unreimbursable expenses 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

LINDELL ELLIS,

Petitioner, No. 23-2043V (ECF) Chief Special Master Corcoran v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On November 29, 2023, Lindell Ellis (“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 left shoulder injury related to vaccine

administration (“SIRVA”), as the result of an influenza (“flu”) vaccination administered on

November 1, 2022. Petition, ECF No. 1, at 1.

On June 20, 2024, 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 that day, the Chief Special Master issued a Ruling on

Entitlement finding petitioner entitled to compensation. ECF Nos. 19, 20.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $67,500.00 in pain and suffering

damages. 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 $1,088.84. See 42 U.S.C. §

300aa-15(a)(1)(B). 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 $68,588.84, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Lindell Ellis: $68,588.84

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

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

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK Assistant 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 lost earnings and future pain and suffering. 2 s/Sarah B. Rifkin SARAH B. RIFKIN 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) 305-5997 Sarah.Rifkin@usdoj.gov

Dated: July 9, 2024