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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1976V
Filed: April 30, 2019
UNPUBLISHED
KATHERINE DUKE,
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.
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On December 19, 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 Shoulder Injury Related to Vaccine
Administration (SIRVA) as a result of her October 30, 2015 influenza (“flu”) vaccination.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On December 20, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On April 29, 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 Because this unpublished decision contains a reasoned explanation for the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).
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).
award of compensation (“Proffer”) indicating petitioner should be awarded $94,128.62,
which is comprised of damages for pain and suffering in the amount of $90,000.00,
damages for past lost wages in the amount of $1,129.01, and damages for
unreimbursed out-of-pocket medical expenses in the amount of $2,999.61. 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
petitioner a lump sum payment of $94,128.62 (which is comprised of damages for
pain and suffering in the amount of $90,000.00, damages for past lost wages in
the amount of $1,129.01, and damages for unreimbursed out-of-pocket medical
expenses in the amount of $2,999.61) in the form of a check payable to petitioner,
Katherine Duke. 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
KATHERINE DUKE,
Petitioner, No. 17-1976V
Chief Special Master Dorsey
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On December 17, 2018, respondent concededed that entitlement to compensation was
appropriate under the terms of the Vaccine Act. Thereafter, on December 20, 2018, Chief
Special Master Dorsey issued a Ruling on Entitlement finding that petitioner was entitled to
vaccine compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”).
Based on the evidence of record, respondent proffers that petitioner should be awarded
$94,128.62, which is comprised of damages for pain and suffering in the amount of $90,000.00,
damages for past lost wages in the amount of $1,129.01, and damages for unreimbursed out-of-
pocket medical expenses in the amount of $2,999.61. This amount 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 lost earnings
and future pain and suffering.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $94,128.62, in the form of a check payable to petitioner. 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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/ Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 305-0660
DATED: April 29, 2019