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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0728V
Filed: May 9, 2019
UNPUBLISHED
LING CHEN,
Petitioner, Special Processing Unit (SPU);
v. Damages Decision Based on Proffer;
Influenza (Flu) Vaccine; Shoulder
SECRETARY OF HEALTH AND Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Joseph Alexander Vuckovich, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On June 1, 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 a left shoulder injury causally related to an
adverse reaction to the influenza vaccine she received on January 28, 2016. Petition at
¶¶ 1-2, 6. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On April 30, 2018, a ruling on entitlement was issued, finding petitioner entitled to
compensation for her left shoulder injury. On May 9, 2019, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $81,629.13,
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 Because this unpublished decision contains a reasoned explanation for the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).
representing compensation in the amount of $80,000.00 for actual and projected pain
and suffering and $1,629.13 for past unreimbursable expenses. Proffer at 1. In the
Proffer, respondent represented that petitioner agrees with the proffered award. Id. at
2. 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 $81,629.13, representing compensation in the
amount of $80,000.00 for actual and projected pain and suffering and $1,629.13
for actual unreimbursable expenses, in the form of a check payable to petitioner,
Ling Chen. 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
LING CHEN,
Petitioner,
v. No. 17-728V
Chief Special Master Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
PROFFER ON AWARD OF DAMAGES
On June 1, 2017, Ling Chen (“petitioner”) filed a petition for compensation (“Petition”)
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), as amended. Respondent conceded petitioner’s entitlement to
compensation in his Rule 4(c) Report filed on April 30, 2018. Based on Respondent’s Rule
4(c) Report, the Chief Special Master found petitioner entitled to compensation.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $80,000.00 in actual and
projected pain and suffering. This amount reflects that any 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 vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $1,629.13. Petitioner agrees.
1
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $81,629.13, in the form of a check made payable to
petitioner. 1 This lump sum payment represents all elements of compensation to which
petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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
s/Jennifer L. Reynaud
JENNIFER L. REYNAUD
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) 305-1586
Date: May 9, 2019
1
Should petitioner die prior to the 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.
2