Gear v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 23, 2020
* * * * * * * * * * * * *
RUTH GEAR, * UNPUBLISHED
*
Petitioner, * No. 18-1684V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Decision Awarding Damages;
AND HUMAN SERVICES, * Tetanus-Diphtheria-Acellular
* Pertussis (Tdap); Shoulder Injury
Respondent. * Related to Vaccine Administration
* * * * * * * * * * * * * (SIRVA).
Jeffrey S. Pop & Kristina Grigorian, Jeffrey S. Pop & Associates, Beverly Hills, CA, for
petitioner.
Camille C. Collett, United States Department of Justice, Washington, DC, for respondent.
DECISION ON DAMAGES1
On October 31, 2018, Ruth Gear (“petitioner”), filed a petitioner for compensation under
the National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of
receiving an tetanus-diptheria-acellular pertussis (Tdap) vaccination on November 13, 2015, she
suffered a right shoulder injury related to vaccine administration (“SIRVA”) with onset of pain
within forty-eight (48) hours, constituting an injury listed on the Vaccine Injury Table. Petition
(ECF No. 1).
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the
decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the
court’s website without any changes. Id.2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of
the Act.
On November 5, 2019, respondent filed his Rule 4(c) report, which provides that the
claim was not appropriate for compensation under the terms of the Act for a Table SIRVA
Injury. ECF No. 21. Subsequently, on August 20, 2020, I issued factual findings regarding the
onset of petitioner’s shoulder pain. Findings of Fact (ECF No. 36). On September 24, 2020,
respondent filed an amended Rule 4(c) report, which provides that respondent would not dispute
that petitioner had satisfied the legal prerequisites for compensation under the terms of the Act
for a SIRVA Table injury. Resp. Report (ECF No. 39). On November 25, 2020, I issued a
Ruling on Entitlement which finds petitioner entitled to compensation. Ruling on Entitlement
(ECF No. 40).
On December 23, 2020, respondent filed a proffer on an award of compensation, which
indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF
No. 44). The proffer is attached hereto as Appendix A.
Consistent with the terms of the proffer, petitioner is hereby awarded a lump sum
payment of $90,468.39, in the form of a check payable to petitioner. The award is comprised
of $87,500.00 for past and future pain and suffering, and $2,968.39 in lost wages. This amount
represents compensation for all elements of compensation that would be available under 42
U.S.C. § 300aa-15(a).
The Clerk of Court SHALL ENTER JUDGMENT in accordance with the terms of the
proffer and this decision.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
RUTH GEAR, )
)
Petitioner, ) No. 18-1684V
) Special Master
v. ) Thomas L. Gowen
) ECF
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 31, 2018, Ruth Gear (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”
or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”), as defined in the Vaccine Injury Table, following administration of a tetanus-
diphtheria-pertussis vaccine she received on November 13, 2015. ECF No. 1. On November 5,
2019, respondent filed his Rule 4(c) Report, indicating that this case was not appropriate for
compensation under the terms of the Act for a SIRVA Table injury. ECF No. 21. Subsequently,
on August 20, 2020, the Special Master issued factual findings regarding the onset of petitioner’s
shoulder pain. ECF No. 36. On September 24, 2020, respondent filed an amended Rule 4(c)
Report, indicating that respondent would not dispute that petitioner had satisfied the legal
prerequisites for compensation under the terms of the Act for a SIRVA Table injury. ECF No.
39. On September 25, 2020, the Special Master issued a Ruling on Entitlement finding
petitioner entitled to compensation. ECF No. 40. Respondent now proffers that petitioner
receive an award of a lump sum of $90,468.39, in the form of a check payable to petitioner. The
award is comprised of $87,500.00 for past and future pain and suffering, and $2,968.39 in lost
wages. This amount represents compensation for all elements of compensation under 42 U.S.C.
§ 300aa-15(a) to which petitioner is entitled. 1 Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting 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/ Camille M. Collett
CAMILLE M. COLLETT
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) 616-4098
E-mail: Camille.m.collett@usdoj.gov
Dated: December 23, 2020
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.