Harris v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-00197V UNPUBLISHED

ERNESTINE HARRIS, Chief Special Master Corcoran

Petitioner, Filed: July 24, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA)

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

Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On February 4, 2019, Ernestine Harris 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 shoulder injury related to vaccine administration (“SIRVA”) as a result of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination administered on September 28, 2017. Petition at 1, 5. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 2, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On July 24, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $71,285.12 (comprised of $70,000.00 for pain and suffering and $1,285.12 for past unreimbursable

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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.

2National 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). expenses). 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.

Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $71,285.12 (comprised of $70,000.00 for pain and suffering and $1,285.12 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 § 15(a).

The clerk of the 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

) ERNESTINE HARRIS, ) ) Petitioner, ) ) No. 19-197V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On February 4, 2019, Ernestine Harris (“petitioner”) filed this claim under the National

Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), as amended, 42 U.S.C. §§

300aa-1 to -34, alleging that she suffered a Shoulder Injury Related to Vaccine Administration

(“SIRVA”) as a result of a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine administered

to her on September 28, 2017. Petition at 1, 5. On June 30, 2020, 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 on July 2, 2020, the

Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation.

ECF No. 29; ECF No. 30.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $70,000.00 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

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

awarded past unreimbursable expenses in the amount of $1,285.12. See 42 U.S.C. § 300aa-

15(a)(1)(B). 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 $71,285.12, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Ernestine Harris: $71,285.12

Respectfully submitted,

ETHAN P. DAVIS Acting Assistant Attorney General

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

CATHARINE E. REEVES Deputy 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 pain and suffering. 2 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ Claudia B. Gangi CLAUDIA B. GANGI Senior 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) 616-4138 Email: claudia.gangi@usdoj.gov

Dated: July 24, 2020