Alexander v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1939V
UNPUBLISHED
CYNTHIA ALEXANDER, Chief Special Master Corcoran
Petitioner, Filed: June 4, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Dhairya Divyakant Jani, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On December 13, 2017, Cynthia Alexander 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 her December 19, 2016 influneza
(“flu”) vaccine. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On September 17, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On June 3, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $112,803.13
(comprised of $105,000.00 for pain and suffering and $7,803.13 in unreimbursable
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I 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).
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, I find that
Petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $112,803.13 (comprised of $105,000.00 for pain and suffering and
$7,803.13 in unreimbursable expenses) in the form of a check payable to
Petitioner. 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/Brian H. Corcoran
Brian H. Corcoran
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
*****************************
CYNTHIA ALEXANDER, *
*
Petitioner, *
*
v. * No. 17-1939V (ECF)
* CHIEF SPECIAL MASTER
* BRIAN H. CORCORAN
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*****************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On September 12, 2019, respondent filed a Vaccine Rule 4(c) report concluding that
petitioner suffered an injury (SIRVA) that is compensable under the National Childhood Vaccine
Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34. Accordingly, on September 17,
2019, Special Master Dorsey issued a Ruling on Entitlement, finding petitioner, Cynthia
Alexander, entitled to Vaccine Act compensation for her Table SIRVA injury.
I. Amount of Compensation
Respondent now proffers that, based on the Special Master’s entitlement decision and the
evidence of record, petitioner should be awarded $112,803.13. 1 This amount represents all
elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).
Petitioner agrees.
1
The parties have no objection to the amount of the proffered award of damages. Assuming the
special master issues a damages decision in conformity with this proffer, the parties waive their
right to seek review of such damages decision.
1
II. Items of Compensation and Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment described below, and request that the Chief Special Master’s
damages decision and the Court’s judgment award the following: 2
A. Petitioner’s Damages
A lump sum payment of $112,803.13 (comprised of $105,000.00 for pain and suffering
and $7,803.13 in unreimbursable expenses) in the form of a check payable to petitioner, Cynthia
Alexander.
B. Guardianship
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
2
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.
2
/s/ DHAIRYA D. JANI
DHAIRYA D. JANI
Trial Attorney
U.S. Department of Justice
Torts Branch, Civil Division
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-4356
Dated: June 3, 2020
3