# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS
No. 20

- 1212 V
UNPUBLISHED

PATRICIA G. HUSTEAD

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: December 8, 2021

Special Processing Unit (SPU); Damages Decision Based on Proffer; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine & Influenza (Flu) Vaccine ; Shoulder Injury
Related to Vaccine Administration (SIRVA)

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA , for Petitioner.

Sarah Christina Duncan , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On September 16, 2020

, Patricia Hustead 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 Table Injury of [the] [r]ight shoulder as a result of the influenza and D Tap vaccines 3 . . . [she] received on October 11, 2018

. ”
Petition at 1

. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 D ecision 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).

3 Medical re cords reflect that Petitioner received the Tdap vaccin e rather than the DTaP vaccine. Ex 1 at
7.2 On November 3, 2021

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for a right SIRVA . On December 8, 2021

, R espondent filed a

p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 51,110.60

. Proffer at 2

. In the Proffer, R espondent represented that P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find that P etitioner is
entitled to an award as stated in the Proffer. 4

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump sum payment of $ 51,110.60 in the form of a check payable to P etitioner

. This award
consists of : (1) $50,000.00 in pain and suffering and (2) $1,110.60 for past unreimbursable expenses. Id

.

Th ese amount s represent compensation for all damages that w ould be available
under Section 15 (a)

.

The clerk of the court is directed to enter judgment in accordance with this
decision. 5

IT IS SO ORDERED.

s/Brian H. Corcoran
Brian H. Corcoran Chief Special Master

4 As noted in the Ruling on Entitlement, Petitioner also received Pneu movax, a pneumococcal polysaccharide vaccine , in her right shoulder on the same date as her Tdap and flu vaccinations. ECF 25
at 1 n.4. Pneu movax is not a covered vaccine listed in the Vaccine Injury Table

. See 42 C.F.R. § 100.3. Respon dent indicates in the proffer that he has “ concluded that compensation is appropriate in this case
because [P]etitioner ’ s injury is consistent with SIRVA as a result of the flu and Tdap vaccines she received on October 11, 2018. ” ECF 29 at 1 n.3. Pneum ovax “ was not included in this concession, and is not included in this proffer. ” Id

.

5 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.IN THE UNITED STATES CO URT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS

PATRICIA G. HUSTEAD,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 20-1212V Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On September 16, 2020, Patricia G. Hust ead (“petitioner”) fi led a petition for

compensation under the National Childhood Vaccin e Injury Act of 1986, 42 U.S.C. §§ 300aa-1

to -34 (“Vaccine Act” or “Act”), alleging that she suffered “a Table In jury of [the] [r]ight

shoulder as a result of the influenza and DTaP 1 vaccines . . . [she] received on October 11,

2018.” 2 Petition at 1. On November 3, 2021, the Secretary of Health and Human Services

(“respondent”) filed a Rule 4(c) Report reco mmending that compensation be awarded for a

shoulder injury related to v accine administration (“SIRVA”), 3 and the Chief Special Master

issued a Ruling on Entitlement finding petitioner entitled to compensation the same day. ECF

No. 24; ECF No. 25.

1 Petitioner received a Tdap vaccine, not a DTaP vaccine. Exhibit (“Ex.”) 1 at 7.

2 Petitioner also received Pneu movax, which is a pneumococcal polysaccharide vaccine, in her right shoulder on the same date. Ex. 1 at 7. Pneumovax is not a covered vaccine listed in the Vaccine Injury Table (“Table”). See 42 C.F.R. § 100.3.

3 Respondent concluded that compensation is appropr iate in this case becau se petitioner’s alleged injury is consistent with SIRVA as a result of the flu and Tdap vaccines she received on October 11, 2018. As noted above, Pneumovax is not a c overed vaccine listed in the Table, was not included in this concession, and is not included in this proffer.2 I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner shoul d be awarded $50,000.00 in actual pain and

suffering. Petitioner agrees.

B. Past Unreimbursable Expenses

Evidence supplied by petitioner documents Patricia G. Hust ead’s expenditure of past

unreimbursable expenses related to her vaccine -related injury. Respondent now proffers that,

based on the Chief Special Master’s entitlement decision and the evidence of record, petitioner

should be awarded past unrei mbursable expenses in the amount of $1,110.60, as provided under

the Vaccine Act, 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees.

These amounts represent all elements of co mpensation 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 requ ired in this case.

Respondent recommends that the compensation pr ovided to petitioner sh ould be made through a

lump sum payment as described below and request s that the Chief Special Master’s decision and

the Court’s judgment award the following 4 : a lump sum payment of $51,110.60, representing

compensation for pain and suffering ($50,000.00), and past unreimbursable expenses

($1,110.60), in the form of a check payable to petitioner, Patricia G. Hustead.

4 Should petitioner die prior to en try of judgment, the parties rese rve 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.3 III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Patricia G. Hustead: $ 51,110.60

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/ 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 Email: sarah.c.duncan@usdoj.gov DATED: December 8, 2021