Garner v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0847V UNPUBLISHED

OSCAR GARNER, Chief Special Master Corcoran

Petitioner, Filed: August 18, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)

Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for Petitioner.

Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On February 3, 2021, Oscar Garner 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 he received an influenza (“flu”) vaccination on November 6, 2018, and thereafter suffered from a left shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 17, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 17, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $45,000.00. Proffer at 1-2. In the Proffer, Respondent 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Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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 (2012). Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $45,000.00, 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

OSCAR GARNER,

Petitioner,

v. No. 21-847V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION1

I. Procedural History

On February 3, 2021, Oscar Garner (“petitioner”) filed a petition for compensation

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

-34, as amended. He alleges that he sustained a Shoulder Injury Related to Vaccine

Administration (“SIRVA”), as defined in the Vaccine Injury Table, within the Table time

period following administration of an Influenza vaccine he received on November 6, 2018. See

Petition. On August 16, 2022, respondent filed his Vaccine Rule 4(c) report, indicating that

this case is appropriate for compensation under the terms of the Act for a SIRVA Table injury.

ECF No. 26. On August 17, 2022, the Chief Special Master issued a ruling on entitlement,

finding that petitioner was entitled to compensation for a SIRVA Table injury. ECF No. 27.

1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued. II. Items of Compensation

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

awarded a lump sum of $45,000.00, for all damages. This amount represents all elements of

compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

III. 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 following2: a lump sum payment of $45,000.00, in the

form of a check payable to petitioner.

IV. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Oscar Garner: $45,000.00

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

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

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

TRACI R. PATTON Assistant Director Torts Branch, Civil Division

2 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 pain and suffering. s/ Tyler C. King TYLER C. KING 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) 305-0730 Tyler.King@usdoj.gov Dated: August 17, 2022