Judges: Brian H. Corcoran
Filed: Oct. 20, 2020
Latest Update: Oct. 20, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-458V UNPUBLISHED CHERYL PORTER, Chief Special Master Corcoran Petitioner, Filed: September 18, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision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) Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner. Claudia Barnes Gangi, U.S. Department o
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-458V UNPUBLISHED CHERYL PORTER, Chief Special Master Corcoran Petitioner, Filed: September 18, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision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) Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner. Claudia Barnes Gangi, U.S. Department of..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-458V
UNPUBLISHED
CHERYL PORTER, Chief Special Master Corcoran
Petitioner, Filed: September 18, 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)
Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On March 28, 2019, Cheryl Porter 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 Related to
Vaccine Administration (SIRVA) as a result of her September 28, 2016 influneza (“flu”)
vaccination. Petition at ¶15. Petitioner further alleges the vaccine was administered
within the United States, that she suffered the residual effects of her injury for more than
six months, and that there has been no prior award or settlement of a civil action on her
behalf as a result of her injury. See Petition at ¶¶2, 17, 20-21. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On July 13, 2020, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for SIRVA. On September 11, 2020, Respondent filed a proffer on award
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).
of compensation (“Proffer”) indicating Petitioner should be awarded $78,420.69
(representing $75,000.00 in compensation for pain and suffering and $3,420.69 in
compensation for past unreimbursable expenses). 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 $78,420.69 (representing $75,000.00 in compensation for pain and
suffering and $3,420.69 in compensation for past unreimbursable 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
)
CHERYL PORTER, )
)
Petitioner, )
) No. 19-458V
v. ) Chief Special Master Corcoran
) (ECF)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On March 28, 2019, Cheryl Porter (“petitioner”) filed this claim under the National
Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Act”), as amended, 42 U.S.C. §§
300aa-1 to -34, alleging that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her on September 28,
2016. Petition at 1, 5. On July 7, 2020, the Secretary of Health and Human Services
(“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation
under the terms of the Act for a SIRVA Table injury, and on July 13, 2020, the Chief Special
Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 24;
ECF No. 26.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $75,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $3,420.69. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following 1: a lump sum payment of $78,420.69, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Cheryl Porter: $78,420.69
Respectfully submitted,
JEFFREY 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
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 pain and
suffering.
2
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s/
Claudia B. Gangi
CLAUDIA B. GANGI
Senior 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) 616-4138
Email: claudia.gangi@usdoj.gov
Dated: September 11, 2020
3
