Rublaitus v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-346V UNPUBLISHED CYNTHIA RUBLAITUS, Chief Special Master Corcoran Petitioner, Filed: February 20, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages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) Michael G. McLaren, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for petitioner. Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES 1 On March 6, 2019, Cynthia Rublaitus 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”) caused by an October 2, 2017 influenza (“flu”) vaccine. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On February 19, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On February 20, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $80,830.00 (comprised of $77,500.00 for pain and suffering and $3,330.00 for past 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). unreimbursed expenses). Proffer at 1. 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 $80,830.00 (comprised of $77,500.00 for pain and suffering, and $3,330.00 for past unreimbursed 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 RUBLAITUS, ) ) Petitioner, ) No. 19-346V ECF ) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ___________________________________ ) PROFFER ON AWARD OF COMPENSATION 1 I. Procedural History On March 6, 2019, Cynthia Rublaitus (“petitioner”) filed a petition for compensation (“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to - 34, as amended. She alleges that, as a result of receiving the influenza (“flu”) vaccine on October 2, 2017, she suffered from a left shoulder injury related to vaccine administration (“SIRVA”). See Petition. On February 18, 2020, respondent filed his Vaccine Rule 4(c) report, conceding a Table injury for SIRVA. On February 19, 2020, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for SIRVA. II. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded a lump sum of $80,830.00 ($77,500.00 for pain and suffering, and $3,330.00 for past unreimbursed expenses). This amount represents all elements of compensation to which 1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued. petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. III. Form of the Award Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $80,830.00, in the form of a check payable to petitioner. 2 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 /s/Darryl R. Wishard DARRYL R. WISHARD Senior Trial Attorney Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4357 Dated: February 20, 2020 Fax: (202) 616-4310 2 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. 2