Sargent v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-888V UNPUBLISHED LISA SARGENT, Chief Special Master Corcoran Petitioner, Filed: November 17, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Respondent. Injury Related to Vaccine Administration (SIRVA) Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On June 21, 2018, Lisa Sargent 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), resulting from the adverse effects of a tetanus diphtheria acellular pertussis (Tdap) vaccination she received on June 7, 2017. Petition at 1. Petitioner further alleges that she received the vaccination within the United States, Petitioner’s pain lasted longer than six months, and that neither she, nor any other party, has ever received compensation in the form of an award or settlement for Petitioner’s injury. Petition at 1, 3-4. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). On August 22, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for Petitioner’s SIRVA. On November 16, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $156,428.16. 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 $156,428.16 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 LISA SARGENT, ) ) Petitioner, ) No. 18-888V ) Chief Special Master v. ) Brian H. Corcoran ) ECF SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Compensation for Vaccine Injury-Related Items On August 22, 2019, respondent filed a Rule 4 (c) Report conceding entitlement in this case. On August 22, 2019, the Court issued a Ruling on Entitlement finding that petitioner was entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”). Respondent proffers that based on the evidence of record, petitioner should be awarded $156,428.16, consisting of $152,500.00 in pain and suffering and $3,928.16 in past unreimbursed expenses. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa- 15(a)(1); 15(a)(3)(A); and 15(a)(4). Petitioner agrees. II. Form of the Award The parties recommend that the compensation provided to petitioner should be made through a lump sum payment as described below, and request that the Chief Special Master’s decision and the Court’s judgment award the following: 1 A lump sum payment of $156,428.16, in the form of a check payable to petitioner, Lisa Sargent. This amount accounts for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled. Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respectfully submitted, JEFFERY BOSSERT CLARK Acting 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 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. /s/ Linda S. Renzi LINDA S. RENZI Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 616-4133 Dated: November 16, 2020