Russell v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1397V

VINCENT RUSSELL, Chief Special Master Corcoran

Petitioner, Filed: January 16, 2025 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

David Alexander Tierney, Rawls Law Group (Richmond), Richmond, VA, for Petitioner.

Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On August 23, 2023, Vincent Russell 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered to him on October 6, 2022. Pet., ECF No. 1. Petitioner further alleges that the vaccine was received in the United States, he suffered sequela of his 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 his vaccine-related injury. Id. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 1, 2024, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. ECF No. 22. On January 16, 2025, Respondent filed a Proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded

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). $42,500.00 in pain and suffering. Proffer at 1, ECF No. 26. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. See 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 $42,500.00 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

VINCENT RUSSELL,

Petitioner,

v. No. 23-1397V (ECF) Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES,

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On August 23, 2023, Vincent Russell (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or

“the Act”), 42 U.S.C. §§ 300aa-1 to -34, alleging that he suffered a right-sided shoulder injury

related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, following

administration of an influenza (“flu”) vaccination that he received on October 6, 2022. ECF No.

1 at 2. On September 19, 2024, respondent filed a Rule 4(c) Report recommending that

compensation be awarded. ECF No. 20. On October 1, 2024, Chief Special Master Corcoran

issued a Ruling on Entitlement, finding petitioner entitled to compensation. ECF No. 22.

I. Compensation

Respondent proffers that petitioner should be awarded $42,500.00 in pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4). 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

one lump sum payment as described below and requests that the Chief Special Master’s decision

and the Court’s judgment award the following:1

One lump sum payment of $42,500.00, in the form of a check payable to petitioner.

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

TRACI R. PATTON Assistant Director Torts Branch, Civil Division

/s/ Joseph Leavitt JOSEPH D. LEAVITT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515 Email: joseph.leavitt@usdoj.gov

Dated: January 16, 2025

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.