Hartley v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1994V Filed: March 15, 2019 UNPUBLISHED ASHLEY HARTLEY, Petitioner, v. Special Processing Unit (SPU); Damages Decision Based on Proffer; SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder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. Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner. Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES 1 Dorsey, Chief Special Master: On December 20, 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 a left shoulder injury following receipt of her November 22, 2016 influenza (“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On December 27, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On March 15, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $80,000.00 in actual and projected 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 Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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). pain and suffering. 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 $80,000.00, representing compensation for petitioner’s actual and projected pain and suffering, in the form of a check payable to petitioner, Ashley Hartley. This amount represents compensation for all damages that would be available under § 15, except for any amounts which may be awarded for attorneys’ fees and costs under § 15(e). 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 ____________________________________ ) ASHLEY HARTLEY, ) ) Petitioner, ) ) v. ) No. 17-1994V ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND ) SPU HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On December 20, 2017, petitioner filed a petition for compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”), alleging that she developed a left shoulder injury as a result of receiving an influenza (“flu”) vaccine on November 22, 2016. On December 17, 2018, respondent filed a Rule 4(c) Report indicating that petitioner is entitled to compensation for a shoulder injury related to vaccine administration (“SIRVA”). For the purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report. On December 27, 2018, Chief Special Master Dorsey issued a Ruling on Entitlement finding that petitioner is entitled to compensation for SIRVA. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $80,000.00 in actual and projected pain and suffering. This amount reflects that the award for projected pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. B. Past Unreimbursable Expenses Petitioner represents that she did not have any past unreimbursable expenses related to her SIRVA. C. Medicaid Lien Petitioner represents that there are no outstanding Medicaid liens against her. II. Form of the Award The parties recommend that the compensation provided to petitioner should be made through a lump sum payment of $80,000.00 in the form of a check payable to petitioner. 1 This represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa- 15(a). Petitioner agrees. 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 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 medical expenses, future lost earnings, and future pain and suffering. -2- s/ Justine Walters__________ JUSTINE WALTERS 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) 307-6393 DATE: March 15, 2019 -3-