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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-348V
UNPUBLISHED
SHERI CONERTY, Chief Special Master Corcoran
Petitioner, Filed: October 14, 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)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On March 26, 2020, Sheri Conerty 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 Table Injury – Shoulder Injury
Related to Vaccine Administration (SIRVA) – as a result of her October 1, 2018 influneza
(“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On September 28, 2021, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On October 13, 2021, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $95,786.30 in
compensation (representing $95,000.00 for pain and suffering and $786.30 for past
unreimbursed expenses) Proffer at 1-2. In the Proffer, Respondent represented that
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2National 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).
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 $95,786.30 (representing $95,000.00 for pain and suffering and
$786.30 for past unreimbursed expenses) 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 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
SHERI CONERTY,
Petitioner, No. 20-348V
v. Chief Special Master Corcoran (SPU)
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On March 26, 2020, Sheri Conerty (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to
-34 (“Vaccine Act” or “Act”), as amended. The Petition alleges that petitioner received an
influenza (“flu”) vaccine in her left deltoid on October 1, 2018, and subsequently suffered from a
left shoulder injury related to vaccine administration (“SIRVA”). Petition at 1.
On September 23, 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 September 28, 2021, the Chief Special Master
issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF Nos. 24 and 25.
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.
1
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 $786.30. 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
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 Chief Special Master’s decision and
the Court’s judgment award the following: a lump sum payment of $95,786.30, in the form of a
check payable to petitioner. 1
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Sheri Conerty: $95,786.30
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/ Adriana Teitel
ADRIANA TEITEL
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-3677
Email: adriana.teitel@usdoj.gov
Dated: October 13, 2021
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