Fitzgerald v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1673V
UNPUBLISHED
SUSAN FITZGERALD, Chief Special Master Corcoran
Petitioner, Filed: August 2, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Nancy Tinch, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On October 29, 2019, Susan Fitzgerald 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 a left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccine received on October 31,
2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On May 18, 2021, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On July 30, 2021, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $95,205.12. Proffer at
2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required 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). 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 (2012).
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 $95,205.12 (comprised of $95,000.00 for pain and suffering and
$205.12 for past unreimbursable expenses) in the form of a check payable to
Petitioner. This amount represents compensation for all damages that would be available
under § 15(a).
The clerk of the 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
SUSAN FITZGERALD,
Petitioner,
v. No. 19-1673V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 29, 2019, Susan Fitzgerald (“petitioner”) 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 October 31, 2017. Petition (“Pet.”) at 1. On May 17, 2021,
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 May 18, 2021, the Chief Special Master issued a Ruling on Entitlement finding
petitioner entitled to compensation. ECF No. 21.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $95,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
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B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $205.12. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
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 following 1: a lump sum payment of $95,205.12, in
the form of a check payable to petitioner.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Susan Fitzgerald: $95,205.12
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
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
LARA A. ENGLUND
Assistant Director
Torts Branch, Civil Division
/s/ NANCY O. TINCH
Nancy O. Tinch
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146 Benjamin Franklin Station
Washington D.C. 20044-0146
(202) 305-2078
nancy.tinch@usdoj.gov
Dated: July 30, 2021
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