Judges: Nora Beth Dorsey
Filed: Oct. 18, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0862V Filed: August 6, 2018 UNPUBLISHED NICOLE CARION, Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Shoulder SECRETARY OF HEALTH AND Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA) Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Sarah Christina Duncan, U.S. Department of Justice, Washingt
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0862V Filed: August 6, 2018 UNPUBLISHED NICOLE CARION, Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Shoulder SECRETARY OF HEALTH AND Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA) Respondent. Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Sarah Christina Duncan, U.S. Department of Justice, Washingto..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0862V
Filed: August 6, 2018
UNPUBLISHED
NICOLE CARION,
Petitioner, Special Processing Unit (SPU);
v. Damages Decision Based on Proffer;
Influenza (Flu) Vaccine; Shoulder
SECRETARY OF HEALTH AND Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On June 26, 2017, petitioner 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 in fact by the influenza vaccine she received on
September 25, 2016. Petition at ¶¶ 1, 8. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On March 9, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation for her SIRVA. On August 6, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $64,294.70,
representing $62,500.00 for actual and projected pain and suffering (with the award for
projected pain and suffering reduced to net present value), and $1,794.70 for past
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National 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).
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, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $64,294.70, representing $62,500.00 for actual
and projected pain and suffering and $1,794.70 for past unreimbursable expenses
in the form of a check payable to petitioner, Nicole Carion. 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/Nora Beth Dorsey
Nora Beth Dorsey
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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
NICOLE CARION, )
)
Petitioner, )
) No. 17-862V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On June 26, 2017, Nicole Carion (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”
or “Act”), alleging that she suffered a “Shoulder Injury Related to Vaccine Administration
(SIRVA), resulting from adverse effects of an influenza (‘flu’) vaccine she received on
September 25, 2016.” Petition at 1. On March 9, 2018, 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, and the Chief Special Master issued a Ruling on
Entitlement finding petitioner entitled to compensation the same day. ECF No. 18; ECF No. 19.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that Nicole Carion should be awarded $62,500.00 in actual and
projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents Nicole Carion’s expenditure of past
unreimbursable expenses related to her vaccine-related injury. Respondent proffers that
petitioner should be awarded past unreimbursable expenses in the amount of $1,794.70, as
provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). 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 Nicole Carion 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 following1: a lump sum payment of $64,294.70,
representing compensation for pain and suffering ($62,500.00), and past unreimbursable
expenses ($1,794.70), in the form of a check payable to petitioner, Nicole Carion.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Nicole Carion: $64,294.70
Respectfully submitted,
CHAD A. READLER
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 lost earnings
and future pain and suffering.
2
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/ Sarah C. Duncan
Sarah C. Duncan
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) 514-9729
Fax: (202) 616-4310
DATED: August 6, 2018
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