Rose v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0939V

ES MAE ROSE, Chief Special Master Corcoran Petitioner, v. Filed: February 16, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Eric J. Neiman, Epstein Becker & Green, P.C., Portland, OR, for Petitioner.

Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On February 17, 2021, Es Mae Rose 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 she developed a right-sided shoulder injury related to vaccine administration (“SIRVA”) from the influenza (“flu”) vaccination she received on September 27, 2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 12, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation. On February 16, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $82,500.00, in pain and suffering. 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.

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). Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $82,500.00, (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.

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

ES MAE ROSE,

Petitioner,

v. No. 21-939V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On February 17, 2021, petitioner, Es Mae Rose, 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 Shoulder Injury Related to Vaccine Administration

(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza

vaccine she received on September 27, 2018. Petition at 1. On June 8, 2023, 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 June

12, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to

compensation. ECF No. 36; ECF No. 37.

I. Item of Compensation

Respondent proffers that petitioner should be awarded $82,500.00 in pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

This amount represents 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 following1: a lump sum payment of $82,500.00, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Es Mae Rose: $82,500.00

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

LARA A. ENGLUND Assistant Director Torts Branch, Civil Division

/s/ NINA Y. REN NINA Y. REN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 (202) 451-7499 DATED: February 16, 2024 Nina.Ren@usdoj.gov 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 lost earnings and future pain and suffering. 2