Ross v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: June 6, 2022

* * * * * * * * * * ** * JANELL ROSS, * UNPUBLISHED * Petitioner, * No. 17-1992V * v. * Special Master Gowen * SECRETARY OF HEALTH * Influenza (“Flu”); Shoulder Injury AND HUMAN SERVICES, * Related to Vaccine Administration * (SIRVA); Proffer. Respondent. * * * * * * * * * * * * * * * Leah V. Durant, Law Offices of Leah Durant, Washington, D.C., for petitioner. Colleen C. Hartley, U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON DAMAGES1

On December 20, 2017, Janell Ross (“petitioner”) filed a petition in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving the influenza (“flu”) vaccine on January 9, 2017, she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”). On October 13, 2021, the undersigned issued a Ruling on Entitlement, finding that petitioner established she suffered a Table SIRVA and was entitled to compensation. Ruling on Entitlement (ECF No. 76).

On June 6, 2022, respondent filed a Proffer of Award of Compensation, which indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF No. 90). The proffer is attached hereto as Appendix A.

1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion is posted on the court’s website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website without any changes. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act. Consistent with the terms in the attached Proffer, I hereby award the following in compensation for all damages that would be available under 42 U.S.C. §300aa-15(a):

1) A lump sum payment of $97,500.00 (for pain and suffering) in the form of a check made payable to petitioner.

The Clerk of the Court is directed to ENTER JUDGMENT in accordance with this decision. 3

IT IS SO ORDERED.

s/Thomas L. Gowen Thomas L. Gowen Special Master

3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).

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

) JANELL ROSS, ) ) ) Petitioner, ) No. 17-1992V ) Special Master Gowen v. ) ECF ) SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On December 20, 2017, Janell Ross 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 January 9, 2017. Petition at Introduction. On November 13, 2019, respondent filed

a Rule 4(c) Report denying that petitioner was entitled to compensation under the Act.

ECF 46. On October 13, 2021, the Special Master issued a Ruling on Entitlement finding that

petitioner was entitled to compensation for SIRVA. 1 ECF 76.

I. Item of Compensation

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

1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Special Master issues a damages decision in conformity with this proffer, respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s October 13, 2021, entitlement decision.

1 $97,500.00, consisting of pain and suffering, which represents all elements of compensation to

which petitioner would be 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 Special Master’s decision and the

Court’s judgment award the following 2: a lump sum payment of $97,500.00, in the form of a

check payable to petitioner.

III. Summary of Recommended Payment Following Judgment

Lump sum payable to petitioner, Janell Ross: $97,500.00

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

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

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division

DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division

2 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 /s/ Colleen C. Hartley COLLEEN C. HARTLEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-3644 Email: colleen.hartley@usdoj.gov DATED: June 6, 2022