Clark v. Secretary of Health and Human Services

    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 19-1387V
                                          UNPUBLISHED


    LISA CLARK,                                                 Chief Special Master Corcoran

                         Petitioner,                            Filed: April 27, 2021
    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)


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.


                                 DECISION AWARDING DAMAGES 1

        On September 11, 2019, Lisa Clark 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”) vaccine administered on
October 12, 2018. Petition at 1. Petitioner further alleges that the vaccine administer
within the United States, that she suffered from the injury for more than six months, and
that there has been no award or settlement for Petitioner’s vaccine-related injury. Petition
at 3. 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   Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 April 22, 2021, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for a SIRVA. On April 26, 2021, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $67,643.71 comprised
of $65,000.00 for pain and suffering and $2,643.71 for past unreimbursed out-of-pocket
medical 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 $67,643.71 comprised of $65,000.00 for pain and suffering and
$2,643.71 for past unreimbursed out-of-pocket medical 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

LISA CLARK,                                    )
                                               )
                 Petitioner,                   )      No. 19-1387V
                                               )      Chief Special Master
          v.                                   )      Brian H. Corcoran
                                               )      SPU
SECRETARY OF HEALTH                            )
AND HUMAN SERVICES,                            )
                                               )
                 Respondent.                   )
                                               )

               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

          On September 11, 2019, Lisa Clark (“petitioner”) filed a petition for compensation

(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34 (“Vaccine Act” or “Act”), as amended. Respondent conceded petitioner’s entitlement to

compensation in his Rule 4(c) Report filed on April 21, 2021. Based on Respondent’s Rule 4(c)

Report, on April 22, 2021, Chief Special Master Corcoran found petitioner entitled to

compensation for her left shoulder SIRVA injury.

I.    Items of Compensation

          Based upon the evidence of record, respondent proffers that petitioner should be awarded

$67,643.71. The award is comprised of $65,000.00 for pain and suffering, and $2,643.71 for

past unreimbursable out-of-pocket medical expenses. This represents all elements of

compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner

agrees.

II.       Form of the Award

          Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $67,643.71, in the form of a check made payable to petitioner. 1

Petitioner agrees.

       Petitioner is a competent adult. Evidence of guardianship is not required in this case.

                                                     Respectfully submitted,

                                                     BRIAN M. BOYNTON
                                                     Acting Assistant Attorney General

                                                     C. SALVATORE D’ALESSIO
                                                     Acting Director
                                                     Torts Branch, Civil Division

                                                     HEATHER L. PEARLMAN
                                                     Acting Deputy Director
                                                     Torts Branch, Civil Division

                                                     ALEXIS B. BABCOCK
                                                     Assistant Director
                                                     Torts Branch, Civil Division

                                                      s/Althea Walker Davis
                                                     ALTHEA WALKER DAVIS
                                                     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) 616-0515
                                                     Althea.Davis@usdoj.gov

DATED: April 26, 2021




1
 Should petitioner die prior to the 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