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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-668V
Filed: May 23, 2019
UNPUBLISHED
HEATHER SHEEHAN,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Eric J. Haag, Atterbury, Kammer & Haag, S.C., Middleton, WI, for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On May 10, 2018, 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 a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
October 25, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On April 3, 2019, a ruling on entitlement was issued, finding petitioner entitled to
compensation for a SIRVA. On May 21, 2019, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded $138,457.57
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 Because this unpublished decision contains a reasoned explanation for the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).
2National 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).
comprised of $135,000.00 for actual and projected pain and suffering, and $3,457.57 for
past unreimbursable expenses. Proffer at 1-2. 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
petitioner a lump sum payment of $138,457.57 (comprised of $135,000.00 for
actual and projected pain and suffering, and $3,457.57 for past unreimbursable
expenses) in the form of a check payable to petitioner, Heather Sheehan. 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
____________________________________
)
HEATHER SHEEHAN, )
)
Petitioner, )
)
v. ) No. 18-668V
) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND ) SPU
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 10, 2018, petitioner filed a petition for compensation under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”), alleging that she
developed a left shoulder injury as a result of receiving an influenza (“flu”) vaccine on October
25, 2016. On April 1, 2019, respondent filed a Rule 4(c) Report indicating that petitioner is
entitled to compensation for a shoulder injury related to vaccine administration (“SIRVA”). For
the purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c)
Report. On April 3, 2019, Chief Special Master Dorsey issued a Ruling on Entitlement finding
that petitioner is entitled to compensation for SIRVA.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $135,000.00 in actual and
projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to her SIRVA. Respondent proffers that petitioner should be awarded past
unreimbursable expenses in the amount of $3,457.57. Petitioner agrees.
C. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against her.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $138,457.57 in the form of a check payable to petitioner.1 This
represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-
15(a). Petitioner agrees.
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
HEATHER L. PEARLMAN
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 lost earnings, and future pain and suffering.
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s/ Justine Walters__________
JUSTINE WALTERS
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) 307-6393
DATE: May 21, 2019
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