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

CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-471V
UNPUBLISHED
ROBYN ZALECKY, Chief Special Master Corcoran
Petitioner, Filed: October 4, 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.
Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On April 20, 2020, Robyn Zalecky 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”) after an influenza (“flu”) vaccine administered on October 10,
2018. Petition at ¶1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On August 10, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for her SIRVA. On October 1, 2021, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $98,689.47,
comprised of $97,500.00 for pain and suffering and $1,189.47 for actual reimbursable
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
expenses. 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 $98,689.47 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
ROBYN ZALECKY, )
)
Petitioner, )
) No. 20-471V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 9, 2021, respondent conceded that entitlement to compensation was
appropriate under the terms of the Vaccine Act. ECF No. 24. On August 10, 2021, Chief
Special Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to
vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”).
ECF No. 26.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$98,689.47. The award is comprised of the following: $97,500.00 for pain and suffering and
$1,189.47 for actual unreimbursable expenses. This amount 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
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $98,689.47, in the form of a check payable to petitioner. Petitioner
agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
/s/ LYNN C. SCHLIE
Lynn C. Schlie
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) 616-3667
Fax: (202) 616-4310
Dated: October 1, 2021