Wilson v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-393V

DARLA WILSON, Chief Special Master Corcoran

Petitioner, Filed: October 23, 2023 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On April 6, 2022, Darla Wilson filed a petition2 for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.3 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from the adverse effects of an influenza (flu) vaccination she received on October 9, 2020. Amended Petition at 1.

The case was assigned to the Special Processing Unit of the Office of Special Masters.

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 Petitioner filed an amended petition on October 6, 2023, removing the allegation of chronic regional pain syndrome (CRPS) as a causal injury, thus only proceeding with a SIRVA Table claim. ECF No. 25.

3 National 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). On October 16, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. Also on October 16, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $82.500.00 for pain and suffering. Proffer at 1. 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.

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.4

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

4 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

DARLA WILSON,

Petitioner, No. 22-393V (ECF) v. Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES,

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On April 6, 2022, Darla Wilson (“petitioner”) filed a petition for compensation under the

National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2018) (the

“Vaccine Act”). On October 6, 2023, petitioner filed an amended petition. Petitioner alleged

that she suffered a left-sided shoulder injury related to vaccine administration as a result of an

influenza vaccine. ECF No. 25 at 1, 3.

On October 16, 2023, the Chief Special Master issued a Ruling on Entitlement, finding

that petitioner is entitled to compensation. ECF No. 26. On the same date, the Chief Special

Master issued a damages order. ECF No. 27.

I. Items of Compensation

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

$82,500.00, consisting of pain and suffering damages, 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 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 following: a lump sum payment of $82,500.00, in the form of a

check payable to petitioner.1

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

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ Naseem Kourosh NASEEM KOUROSH Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 Telephone: (202) 305-1159 E-mail: Naseem.Kourosh@usdoj.gov DATED: October 16, 2023

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 medical expenses, future pain and suffering, and future lost wages.