Harris v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided November 21, 2014·No. 13-848·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-848V (Not to be published)

***************************** * DEBBIE HARRIS, * Filed: October 30, 2014 * Petitioner, * Entitlement; Off-Table Injury; * Conceded; Decision by Proffer; v. * Damages; Trivalent Influenza (“flu”) * Vaccine; Shoulder Injury Related * to Vaccine Administration SECRETARY OF HEALTH AND * (“SIRVA”) HUMAN SERVICES, * * Respondent. * * *****************************

Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner.

Lara Englund, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

DECISION FINDING ENTITLEMENT AND AWARDING DAMAGES1

On October 29, 2013, Debbie Harris filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the trivalent influenza (“flu”) vaccine on November 18, 2011.

1 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the public. Id. 2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. ' 300aa-10 – 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act. In her Rule 4(c) Report, filed on January 23, 2014, Respondent conceded that Petitioner’s claim was compensable under the Act. Respondent specifically stated that the Division of Vaccine Injury Compensation (“DVIC”), Department of Health and Human Services, had reviewed the facts of this case and had concluded that Petitioner’s injury was consistent with SIRVA. Accordingly, DVIC agreed that Petitioner’s claim satisfied the Althen requirements and that she had proven her injury was caused-in-fact by a vaccination. Respondent indicated that no other causes for Petitioner’s condition had been identified and the statutory six month sequelae requirement had been satisfied. Therefore, the Rule 4(c) Report indicated that once Petitioner established that no one had previously collected an award or settlement of civil damages on her behalf, she would have satisfied the legal prerequisites for compensation under the Act, and would be entitled to an award of damages.

In view of Respondent’s concession, on January 24, 2014, I issued an order indicating that this case was ready for the damages phase.

On October 29, 2014, Respondent filed a proffer recommending an award of compensation to Petitioner in accordance with the life care items of compensation as illustrated by the spreadsheet analysis attached to the proffer as Tab A (a copy of which is also attached here). I have reviewed the file, and based upon that review, I conclude that the Respondent’s proffer was reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The proffer awards Petitioner:

 A lump sum of $207,030.12 representing the discounted present value of life care expenses expected to be occurred over Debbie Harris’s life ($69,717.83), pain and suffering ($135,000.00), and past unreimbursable expenses ($2,312.29), in the form of a check payable to Petitioner, Debbie Harris. This amount accounts for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which Petitioner would be entitled.

Proffer § 2.

Based on my own review of the record (See § 300aa-13(a)(1); 42 C.F.R. § 100.3(a)(I), I find that Petitioner is entitled to compensation for an injury that was caused-in-fact by a covered vaccine. 42 C.F.R. §§ 100.3(a)(XIV), 100.3(b)(2). I therefore approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.

2 IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

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

DEBBIE HARRIS, ) ) Petitioner, ) ) v. ) No. 13-848V ) Special Master Brian H. Corcoran SECRETARY OF ) HEALTH AND HUMAN SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner Jacqueline Morris, RN, BSN, CRRN, CNLCP, and

petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of petitioner’s

future vaccine-injury related needs. For the purposes of this proffer, the term “vaccine related”

is as described in respondent’s Rule 4(c) Report filed January 23, 2014. All life care items of

compensation are supported by the evidence and are illustrated by the spreadsheet analysis

entitled Appendix A: Discounted Present Value of Life Care Items of Compensation for Debbie

Harris, attached hereto as Tab A. 1 Respondent proffers that Debbie Harris should be awarded all

life care items of compensation as illustrated by the spreadsheet analysis attached at Tab A.

Petitioner agrees.

1 The chart at Tab A illustrates projected annual life care expenses, discounted over life expectancy at the net discount rates indicated. B. Lost Earnings

Petitioner has not submitted a claim for lost earnings and has not submitted any evidence

that would demonstrate that she is entitled to compensation for past or future lost earnings.

Thus, petitioner is not entitled to an award for lost earnings. Petitioner agrees.

C. Pain and Suffering

Respondent proffers that Debbie Harris should be awarded $135,000.00 in actual and

projected pain and suffering. This amount reflects that the award for projected pain and

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

agrees.

D. Past Unreimbursable Expenses

Evidence supplied by Debbie Harris documents her expenditure of past unreimbursable

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

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