In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1463V
Filed: October 19, 2017
UNPUBLISHED
ABBY DUX,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On November 4, 2016, 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
October 10, 2014. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On March 15, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a SIRVA. On October 17, 2017, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $81,240.10
comprised of $68,000.00 for pain and suffering; $7,500.00 in future expenses; $544.45
for past expenses; and $5,195.65 for lost earnings. Proffer at 1. In the Proffer,
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
respondent represented that petitioner agrees with the proffered award. 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 $81,240.10 in the form of a check payable to
petitioner, Abby Dux. This amount represents compensation for all damages that
would be available under § 300aa-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
************************** * *
*
ABBY DUX, *
*
Petitioner, *
*
v. * No. 16-1463V (ECF)
* CHIEF SPECIAL MASTER
* NORA BETH DORSEY
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*****************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
In her March 15, 2017 decision, the Chief Special Master found that a preponderance of
the medical evidence indicates that petitioner suffered a shoulder injury related to vaccine
administration (“SIRVA”), which was causally related to the flu vaccination she received on
October 10, 2014. The parties have now addressed the amount of compensation to be awarded in
this case.
I. Compensation
Based upon the evidence of record, respondent proffers that a lump sum of $81,240.10
should be awarded petitioner. This amount is comprised of: a) $68,000.00 for pain and
suffering; b) $7,500.00 in future expenses; c) $544.45 for past expenses; and d) $5,195.65 for
lost earnings. This lump sum 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, respondent would oppose any award for future
medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the
right to move the Court for appropriate relief.
II. Form of the Award
The parties recommend that the compensation provided should be made in the form of a
check for $81,240.10 payable to petitioner.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
VORIS E. JOHNSON, JR.
Senior Trial Attorney
Torts Branch, Civil Division
/s/ DOUGLAS ROSS
DOUGLAS ROSS
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) 616-3667
DATE: October 17, 2017
2
Dux v. Secretary of Health and Human Services
Combined Opinion