Harrison v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-0795V
Filed: November 18, 2015
Unpublished
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SHERRY HARRISON, *
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza (“flu”) Vaccine; Shoulder Injury
* Related to Vaccine Administration;
SECRETARY OF HEALTH * (“SIRVA”); Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
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Maximillian Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Justine Walters, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On July 27, 2015, Sherry Harrison (“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” or “Program”). Petitioner alleged that she developed a
shoulder injury as a result of receiving an influenza (“flu”) vaccination on September 19,
2014. Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of
the Office of Special Masters.
On November 5, 2015, a ruling on entitlement was issued, finding petitioner
entitled to compensation for a shoulder injury related to vaccine administration
(“SIRVA”). On November 17, 2015, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded $65,000.00 in actual
and projected pain and suffering, and $2,443.99 in past unreimbursable expenses.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended
at 44 U.S.C. § 3501 note (2006)). 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.
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).
Proffer at 2. Future unreimbursable expenses and lost earnings were not awarded. Id.
at 1-2. In the Proffer, respondent represented that petitioner agrees with the proffered
award. Based on the record as a whole, the undersigned finds that petitioner is entitled
to an award as stated in the Proffer.
Additionally, petitioner supplied documentation of reasonable attorneys’ fees and
litigation costs in the amount of $14,000.00, incurred in pursuit of this petition. In
compliance with General Order #9, petitioner has indicated that she did not incur any
out-of-pocket expenses in proceeding on the petition. Respondent proffers that
petitioner should be awarded $14,000.00 for attorneys’ fees and costs. Proffer at 2. In
the Proffer, respondent represented that petitioner agrees with the proffered award. Id.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner the following: 3
A. A lump sum payment of $67,443.99 in the form of a check payable to
petitioner, Sherry Harrison. This amount represents compensation for pain
and suffering and past unreimbursable expenses. This amount represents
compensation for all damages that would be available under § 300aa-15(a).
B. A lump sum payment of $14,000.00 in the form of a check payable to
petitioner and petitioner’s attorney, Maximillian J. Muller for attorneys’ fees
and costs.
The clerk of the court is directed to enter judgment in accordance with this
decision. 4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
“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.” Proffer at 2, fn. 1.
4
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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
SHERRY HARRISON, )
)
Petitioner, )
)
v. ) No. 15-795V
) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND ) SPU
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
For the purposes of this proffer, the term “vaccine-related” is as described in
Respondent’s Rule 4(c) Report filed on November 5, 2015.
A. Future Unreimbursable Expenses
The parties agree that based upon the evidence of record, petitioner will not require future
care for her vaccine-related injury. Therefore, respondent proffers that petitioner should be
awarded no future unreimbursable expenses under 42 U.S.C. § 300aa-15(a)(1).
Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, petitioner has been employed
and will continue to be gainfully employed in the future. Therefore, respondent proffers that
petitioner should be awarded no anticipated loss of earnings under 42 U.S.C. § 300aa-
15(a)(3)(A). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $65,000.00 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.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $2,443.99. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against her.
F. Attorneys’ Fees and Costs
Petitioner has supplied documentation of reasonable attorneys’ fees and litigation costs in
the amount of $14,000.00, incurred in pursuit of this petition. In compliance with General Order
#9, petitioner has indicated that she did not incur any out-of-pocket expenses in proceeding on
the petition. Respondent proffers that petitioner should be awarded $14,000.00 for attorneys’
fees and costs. Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
lump sum payments as described below and request that the Chief Special Master’s decision and
the Court’s judgment award the following: 1
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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A. A lump sum payment of $67,443.99, representing compensation for pain and
suffering and past unreimbursable expenses, in the form of a check payable to petitioner; and
B. A lump sum payment of $14,000.00, in the form of a check payable to petitioner and
petitioner’s attorney, Maximillian J. Muller, Esq., for attorneys’ fees and costs. Petitioner agrees
to endorse this payment to petitioners’ attorney.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner: $67,443.99
B. Reasonable Attorneys’ Fees and Costs: $14,000.00
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
LYNN E. RICCIARDELLA
Senior Trial Attorney
Torts Branch, Civil Division
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: November 16, 2015
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