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

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UNPUBLISHED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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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