Leep v. Secretary of Health and Human Services

    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 20-342V
                                          UNPUBLISHED


    DONNA LEEP,                                                 Chief Special Master Corcoran

                         Petitioner,                            Filed: September 2, 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)


Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.

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


                                 DECISION AWARDING DAMAGES 1

      On March 25, 2020, Donna Leep 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) after receiving an influenza (“flu”) vaccination on October 11,
2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.

       On July 19, 2021, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for a left SIRVA. On September 1, 2021, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $110,302.68.
Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the


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   Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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 $110,302.68 in the form of a check payable to Petitioner. This award
is comprised of $110,000.00 for pain and suffering and $302.68 for past unreimbursable
out-of-pocket medical expenses.

      These amounts represent compensation for all damages that would be available
under Section 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

DONNA LEEP,                                   )
                                              )
                 Petitioner,                  )       No. 20-342V
                                              )       Chief Special Master
          v.                                  )       Brian H. Corcoran
                                              )       SPU
SECRETARY OF HEALTH                           )
AND HUMAN SERVICES,                           )
                                              )
                 Respondent.                  )
                                              )

               RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

          On March 25, 2020, Donna Leep (“petitioner”) filed a petition for compensation under

the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the

Act”), 42 U.S.C. §§ 300aa-1 to -34. Respondent conceded petitioner’s entitlement to

compensation in his Rule 4(c) Report filed on July 14, 2021. (ECF No. 26) Based on

Respondent’s Rule 4(c) Report, on July 19, 2021, Chief Special Master Corcoran found

petitioner entitled to compensation for her left shoulder SIRVA injury. (ECF No. 27)

I.    Items of Compensation

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

$110,302.68. The award is comprised of $110,000.00 for pain and suffering, and $302.68 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 $ $110,302.68, 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
                                                     Deputy Director
                                                     Torts Branch, Civil Division

                                                     DARRYL R. WISHARD
                                                     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: September 1, 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.