Barrette v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1046V
UNPUBLISHED
JODIE BARRETTE, Chief Special Master Corcoran
Petitioner, Filed: November 29, 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.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On August 20, 2020, Jodie Barrette 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of influenza (“flu”) and Pneumococcal 23 (“PCV 23”)
vaccines that were administered to her on November 8, 2018. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On October 29, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On November 29, 2021, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $95,823.49
(comprised of $95,000.00 in pain and suffering and $823.49 in past unreimbursable
expenses). Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
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 $95,823.49 (comprised of $95,000.00 in pain and suffering and
$823.49 in past unreimbursable 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
)
JODIE BARRETTE, )
)
Petitioner, )
) No. 20-1046V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 20, 2020, Jodie Barrette (“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 from a left shoulder injury related to vaccine administration
(“SIRVA”), defined in the Vaccine Injury Table, following administration of influenza (“flu”)
and Pneumococcal 23 vaccines that she received on November 8, 2018. 1 Petition at 1. On
October 27, 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 following a flu vaccination. ECF No. 23. On October 29, 2021, the Chief
Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF
No. 24.
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The Pneumococcal 23 vaccine is not a vaccine covered under the Act. The compensation to
petitioner is based on the presumed Table injury from the flu vaccine only.
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.
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 $823.49. 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 2: a lump sum payment of $95,823.49, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Jodie Barrette: $95,823.49
2
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
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
TRACI R. PATTON
Assistant Director
Torts Branch, Civil Division
/s/ Mollie D. Gorney
MOLLIE D. GORNEY
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-4029
DATED: November 29, 2021
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