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


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  •     In the United States Court of Federal Claims
    OFFICE OF SPECIAL MASTERS
    No. 19-1075V
    UNPUBLISHED
    BRIANNA LOUGHRY,                                            Chief Special Master Corcoran
    Petitioner,                            Filed: May 14, 2021
    v.
    Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                     Damages Decision Based on Proffer;
    HUMAN SERVICES,                                             Tetanus Diphtheria acellular
    Pertussis (Tdap) Vaccine; Shoulder
    Respondent.                            Injury Related to Vaccine
    Administration (SIRVA)
    Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
    petitioner.
    Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
    DECISION AWARDING DAMAGES 1
    On July 25, 2019, Brianna Loughry 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”) caused by a tetanus-diphtheria-acellular pertussis vaccine
    administered on March 26, 2018. Petition at 1. Petitioner further alleges that the vaccine
    was administered within the United States, that she experienced the sequela of her injury
    for more than six months, and that no party has ever received compensation for her
    vaccine-related injury. Petition at 4. The case was assigned to the Special Processing
    Unit of the Office of Special Masters.
    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    Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
    (2012).
    On January 12, 2021, a ruling on entitlement was issued, finding Petitioner entitled
    to compensation for a SIRVA. On May 12, 2021, Respondent filed a proffer on award of
    compensation (“Proffer”) indicating Petitioner should be awarded $105,045.08
    (comprised of $102,500.00 for pain and suffering and $2,545.08 for past unreimbursed
    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 $105,045.08 (comprised of $102,500.00 for pain and suffering and
    $2,545.08 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 § 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
    ____________________________________
    )
    BRIANNA LOUGHRY,                    )                No. 19-1075V
    )                Chief Special Master Brian H. Corcoran
    Petitioner,             )
    )
    v.                            )
    )
    SECRETARY OF HEALTH AND             )
    HUMAN SERVICES,                     )
    )
    Respondent.             )
    )
    RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
    On January 11, 2021, respondent conceded that entitlement to compensation was
    appropriate under the terms of the Vaccine Act. On January 12, 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”) and related
    sequela.
    I.    Amount of Compensation
    Respondent now proffers that, based on the Chief Special Master’s entitlement decision
    and the evidence of record, petitioner should be awarded $105,045.08. The award is comprised
    of the following: $102,500.00 for pain and suffering, and $2,545.08, for past unreimbursed
    expenses. This amount represents all elements of compensation to which petitioner would be
    entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
    1
    II.      Form of the Award
    The parties recommend that the compensation provided to petitioner should be made as
    described below, and request that the Chief Special Master’s damages decision and the Court’s
    judgment award the following:     1
    A. Petitioner’s Damages
    Respondent recommends that the compensation provided to petitioner should be made
    through:
    a lump sum of $105,045.08, in the form of a check payable to petitioner. This
    amount represents compensation for all damages that would be available under 42
    U.S.C. § 300aa-15(a).
    Petitioner agrees.
    B. Guardianship
    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
    Acting Deputy Director
    Torts Branch, Civil Division
    ALEXIS B. BABCOCK
    Assistant 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 medical
    expenses, future pain and suffering, and future lost wages.
    2
    /s/ Kyle E. Pozza_____________
    KYLE E. POZZA
    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) 616-3661
    E-mail: Kyle.Pozza@usdoj.gov
    Dated: May 12, 2021
    3
    

Document Info

Docket Number: 19-1075

Judges: Brian H. Corcoran

Filed Date: 6/14/2021

Precedential Status: Non-Precedential

Modified Date: 6/15/2021