Hernandez v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1290V

GLORIA HERNANDEZ, Chief Special Master Corcoran

Petitioner, Filed: October 3, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On August 10, 2023, Gloria Hernandez 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 tetanus-diphtheria-acellular pertussis (“Tdap”) and pneumococcal conjugate (“Prevnar 13”) vaccinations administered to her on February 17, 2021. Pet., ECF No. 1. Petitioner further alleges that the vaccine was received in the United States, she suffered sequela of her injury for more than six months, and neither Petitioner nor any other party has ever received compensation in the form of an award or settlement for her vaccine-related injury. Id. The case was assigned to the Special Processing Unit of the Office of Special Masters.

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).

On July 15, 2024, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. ECF No. 18. On October 3, 2024, Respondent filed a Proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $60,000.00 in pain and suffering. Proffer at 2, ECF No. 23. 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 $60,000.00 for pain and suffering, 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.

CORRECTED

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS

GLORIA HERNANDEZ,

Petitioner,

Case No. 23-1290V (ECF)

v. CHIEF SPECIAL MASTER CORCORAN

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S AMENDED PROFFER ON AWARD OF COMPENSATION

I. Procedural History

On August 10, 2023, Gloria Hernandez (“petitioner”) filed a petition for

compensation (“Pet.”) under the National Childhood Vaccine Injury Act of 1986,

42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended. Petitioner alleges

that she suffered a right shoulder injury related to vaccine administration (“SIRVA”), as

the result of a tetanus, diphtheria, and acellular pertussis (“Tdap”) vaccine and

pneumococcal conjugate (“Prevnar 13”) vaccine administered on February 17, 2021. Pet.

at 1.

On July 8, 2024, respondent filed his Rule 4(c) Report, conceding entitlement in

this case because petitioner met the criteria to establish a Table SIRVA. ECF Doc. No.

17 at 1, 5-6. On July 15, 2024, the Court issued its Ruling on Entitlement, finding that

petitioner was entitled to compensation. ECF Doc. No. 18.

II. Items of Compensation and Form of the Award

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

awarded $60,000.00. The award is comprised of the following: $60,000.00 for pain and

suffering. This amount represents all elements of compensation to which petitioner

would be entitled under 42 U.S.C. § 300aa-15(a) regarding her February 17, 2021, Tdap

and Prevnar 13 vaccinations. Petitioner agrees.1

III. Form of the Award

The parties recommend that compensation provided to petitioner should be made

through a lump sum payment of $60,000.00, in the form of a check payable to petitioner.

Petitioner agrees.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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

VORIS E. JOHNSON, JR. 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 medical expenses, future lost earnings, and future pain and suffering.

3

s/ Mark K. Hellie MARK K. HELLIE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 T: (202) 616-4208 E: mark.hellie@usdoj.gov

DATED: October 4, 2024