Chesley v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1936V
Filed: June 5, 2019
UNPUBLISHED
MELODY CHESLEY,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Tetanus Diphtheria acellular
HUMAN SERVICES, Pertussis (Tdap) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On December 13, 2017, petitioner 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 she suffered a Shoulder Injury
Related to Vaccine Administration (“SIRVA”), resulting from the tetanus-diphtheria-
acellular pertussis (“Tdap”) vaccination she received on January 6, 2017. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On November 2, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On June 4, 2019, respondent filed a proffer on
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
award of compensation (“Proffer”) indicating petitioner should be “awarded
$117,251.32. This is comprised of pain and suffering ($80,000.00), unreimbursable out
of pocket expenses incurred personally by petitioner ($901.56), out of pocket medical
expenses owed to South Peninsula Hospital, Inc. ($26,359.82), and past lost wages
($9,989.94).” Proffer at 1. In the Proffer, respondent represented that petitioner agrees
with the proffered award. Id. Based on the record as a whole, the undersigned finds
that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
the following:
• a lump sum payment of $90,891.50 (comprised of pain and suffering
($80,000.00), unreimbursable out of pocket expenses incurred personally
by petitioner ($901.56), and past lost wages ($9,989.94)) in the form of a
check payable to petitioner, Melody Chesley.
• a lump sum of $26,359.82, representing the balance due on petitioner’s
past incurred medical expenses, in the form of a check payable jointly to
petitioner and South Peninsula Hospital Inc. Petitioner agrees to endorse
this payment to South Peninsula Hospital.
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/Nora Beth Dorsey
Nora Beth Dorsey
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
MELODY CHESLEY,
Petitioner,
No. 17-1936V
v. Chief Special Master Dorsey
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On November 1, 2018, respondent filed a Rule 4(c) Report conceding that petitioner is
entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration
(“SIRVA”) injury. On November 2, 2018, the Chief Special Master issued a Ruling on
Entitlement adopting respondent’s recommendation.
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$117,251.32. This is comprised of pain and suffering ($80,000.00), unreimbursable out of
pocket expenses incurred personally by petitioner ($901.56), out of pocket medical expenses
owed to South Peninsula Hospital, Inc. ($26,359.82), and past lost wages ($9,989.94), and
represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. §
300aa-15(a). 1 Petitioner agrees.
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 and future pain and suffering.
II. Form of the Award
Respondent recommends, and petitioner agrees, that the compensation provided to
petitioner should be made through the following:
• a lump sum payment of $90,891.50 in the form of a check payable to petitioner 2 and
• a lump sum of $26,359.82, representing the balance due on petitioner’s past incurred
medical expenses, in the form of a check payable jointly to petitioner and South
Peninsula Hospital Inc. Petitioner agrees to endorse this payment to South Peninsula
Hospital.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
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
Dated: June 4, 2019
2
Petitioner is a competent adult, therefore evidence of guardianship is not required in this case.