Powell v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-1843V

LUZITA POWELL, Chief Special Master Corcoran

Petitioner, Filed: October 7, 2025 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jonathan P. Growth, Growth Law Firm, S.C., Wauwatosa, WI, for Petitioner.

Sara DeStefano, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On November 12, 2024, Luzita Powell 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”), a defined Table injury, after receiving an influenza (“flu”) vaccine on October 26, 2023. Petition at 1, ¶¶ 2, 14, 16-17. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 7, 2025, I issued a ruling on entitlement, finding Petitioner entitled to compensation for her SIRVA. On October 7, 2025, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $70,503.81, representing $70,000.00 for pain and suffering and $503.81 for past unreimbursable expenses. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with

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).

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 $70,503.81, representing $70,000.00 for pain and suffering and $503.81 for actual unreimbursable expense, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement 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.

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

LUZITA POWELL,

Petitioner,

v. No. 24-1843V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

PROFFER ON AWARD OF COMPENSATION 1

On November 12, 2024, Luzita Powell (“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 left shoulder injury related to vaccine

administration (“SIRVA”), as defined in the Vaccine Injury Table, 42 C.F.R. § 100.3, as the

result of an influenza (“flu”) vaccination received on October 26, 2023. Petition at 3.

On July 3, 2025, the Secretary of Health and Human Services (“respondent”) filed his Vaccine

Rule 4(c) report, concluding that this case is appropriate for compensation under the terms of the

Act for a SIRVA Table injury. See ECF No. 17. On July 7, 2025, Chief Special Master

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

Table injury. See ECF No. 18.

I. Items of Compensation

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

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

the following:

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 $503.81. 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

The parties recommend that compensation provided to petitioner should be made through

a lump sum payment, as described below, and request that the Chief Special Master’s decision

and the Court’s judgment award the following: 2

A lump sum payment of $70,503.81 to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner, Luzita Powell.

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

Respectfully submitted,

BRETT A. SHUMATE Assistant Attorney General

C. SALVATORE D’ALESSIO 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.

3

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

COLLEEN HARTLEY Assistant Director Torts Branch, Civil Division

/s/ Sara DeStefano SARA DESTEFANO 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) 307-6545 E-mail: sara.destefano@usdoj.gov

DATED: October 7, 2025