Meyer v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-452V

YVONNE MEYER, Chief Special Master Corcoran

Petitioner, Filed: March 15, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On January 11, 2021, Yvonne Meyer 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 Table injury – shoulder injury related to vaccine administration (“SIRVA”), as the result of an influenza (“flu”) vaccination received on November 12, 2020. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 13, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 14, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $51,000.00, consisting of $50,000.00 for past pain and suffering and $1,000.00 for unreimbursable out-of-pocket

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). expenses. Proffer at 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 $51,000.00 (consisting of $50,000.00 for past pain and suffering and $1,000.00 for 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 ___________________________________ ) YVONNE MEYER, ) ) Petitioner, ) No. 21-452V ECF ) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________)

PROFFER ON AWARD OF COMPENSATION 1

I. Procedural History

On January 11, 2021, Yvonne Meyer (“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 Table shoulder injury related to vaccine

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

November 12, 2020. Petition at 1. On October 10, 2023, respondent filed his Vaccine Rule 4(c)

Report, concluding that petitioner suffered from SIRVA as defined by the Vaccine Injury Table,

within the Table timeframe. ECF No. 29. On October 13, 2023, Chief Special Master Corcoran

issued a ruling on entitlement, finding that petitioner is entitled to compensation for a SIRVA

Table injury. ECF No. 31.

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 $51,000.00, consisting of $50,000.00 for past pain and suffering and $1,000.00

for unreimbursable out-of-pocket expenses. 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

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: A lump sum payment of $51,000.00 in

the form of a check payable to petitioner.2 Petitioner agrees.

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

COLLEEN C. HARTLEY Assistant Director Torts Branch, Civil Division

2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 2 s/ Joseph A. Lewis JOSEPH A. LEWIS 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) 451-7495 E: joseph.a.lewis@usdoj.gov

DATED: March 14, 2024