Tucker v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-0718V Filed: July 3, 2018 UNPUBLISHED

TAYLOR TUCKER, Special Processing Unit (SPU); Petitioner, Damages Decision Based on Proffer; v. Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine SECRETARY OF HEALTH AND Administration (SIRVA) HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

On June 20, 2016, petitioner 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 left shoulder injury following receipt of her October 7, 2015 influenza vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 14, 2016, a ruling on entitlement was issued, finding petitioner entitled to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On July 2, 2018, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $188,251.98, which is comprised of $145,000.00 for pain and suffering, $41,834.28 for lost wages, and $1,417.70 for out of

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). pocket expenses. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $188,251.98 (representing $145,000.00 for pain and suffering, $41,834.28 for lost wages, and $1,417.70 for out of pocket expenses) in the form of a check payable to petitioner, Taylor Tucker. This amount represents compensation for all damages that would be available under § 300aa-15(a).

The clerk of the court is directed to enter judgment in accordance with this decision. 3

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey 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

) TAYLOR TUCKER, ) ) Petitioner, ) ) No. 16-718V (ECF) v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Compensation for Vaccine Injury-Related Items

On October 14, 2016, respondent filed his Rule 4(c) Report conceding entitlement in the

above-captioned case. Chief Special Master Dorsey issued a Ruling on Entitlement on October

14, 2016, finding that petitioner was entitled to vaccine compensation for her Shoulder Injury

Related to Vaccine Administration (“SIRVA”). Based on the evidence of record, respondent

proffers that petitioner should be awarded $188,251.98. This amount includes $145,000.00 for

pain and suffering, $41,834.28 for lost wages, and $1,417.70 for out-of-pocket expenses, and it

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

Respondent recommends that the compensation provided to petitioner be made through a

lump sum payment of $188,251.98 in the form of a check payable to petitioner.1 Petitioner agrees.

1 Should petitioner die prior to the entry of judgment, respondent reserves the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future pain and suffering, and future lost wages. 1 Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

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

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division

s/Amy P. Kokot AMY P. KOKOT Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, DC 20044-0146 Tel: (202) 616-4118

Dated: July 2, 2018