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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1506V
UNPUBLISHED
KELLY CAVEN, Chief Special Master Corcoran
Petitioner, Filed: June 24, 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)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On September 28, 2018, Kelly Caven 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 that she suffered left shoulder injuries related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination received
on October 10, 2016. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On March 11, 2020, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On June 23, 2020, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $125,000.00. Proffer
at 1. In the Proffer, Respondent represented that Petitioner agrees with the proffered
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
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 $125,000.00, for pain and suffering, 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
KELLY CAVEN,
Petitioner,
No. 18-1506v
v. Chief Special Master Corcoran (SPU)
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On March 9, 2020, respondent filed a Rule 4(c) Report conceding that petitioner is
entitled to vaccine compensation for a Table injury of Shoulder Injury Related to Vaccine
Administration suffered following receipt of an influenza vaccination on October 10, 2016. A
Ruling on Entitlement was issued on March 11, 2020.
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$125,000.00 for pain and suffering. This award represents all elements of compensation to
which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $125,000.00 in the form of a check payable to petitioner. 2
Petitioner agrees.
1
Should Petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief.
2
Petitioner is a competent adult, therefore evidence of guardianship is not required in this case.
1
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
DARRYL WISHARD
Assistant Director
Torts Branch, Civil Division
/s/ Adriana Teitel
ADRIANA TEITEL
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-3677
Dated: June 23, 2020
2