# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1413V Filed: September 25, 2018

UNPUBLISHED

CYNTHIA LEVIN,

Petitioner,

v.

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)

Isaiah Richard Kalinowski, Maglio Christoph er & Toale, PA, Washington, DC, for petitioner. Darryl R. Wishard, U.S. Department of Justice, Wa shington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey , Chief Special Master:

On October 3, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensat ion 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”) vaccination administered on October 5, 2016. Petition at 1-2. The case was assigne d to the Special Processing Unit of the Office of Special Masters.

On June 7, 2018, a ruling on entitlement wa s issued, finding petitioner entitled to compensation for a SIRVA. On September 24, 2018, respondent filed a proffer on award of compensation (“Proffe r”) indicating petitioner should be awarded $116,000.00 consisting of $115,000.00 for past and future pain and suffering, and $1,000.00 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Cour t of Federal Claims'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 inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned 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 Ac t will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 unreimbursed expenses. Proffe r at 2. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based on the record as a whole, the undersigned finds that petitioner is entitl ed to an award as stated in the Proffer.

Pursuant to the terms stat ed in the attached Proffer, the undersigned awards petitioner a lump sum payment of $116,000. 00 in the form of a check payable to petitioner, Cynthia Levin. This amount represents compens ation for all damages that

would be available un der § 300aa-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 c an be expedited by the parties’ joint filing of notice renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

___________________________________ )

CYNTHIA LEVIN, )
)
Petitioner, ) No. 17

- 1413V ECF
)

v. ) Chief Special Master Dorsey
)

SECRETARY OF HEALTH )

AND HUMAN SERVICES, )
) Respondent. )

___________________________________ )

PROFFER ON AWARD OF COMPENSATION 1

I. Procedural History

On October 3, 2017, Cynthia Levin (“petitioner”) filed a petition for compensation

(“p etition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

-

34, as amended . She alleges that, as a result of receiving the influenza (“flu”) vaccine on

October 5, 20 16, she suffered from a right shoulder injury related to vaccine administration

(“ SIRVA”)

, which is an injury listed on the Vaccine Injury Table (“Table”) for the flu vaccine. 2

Petition at 1

- 2. On June 4 , 2 018, respondent filed h is Vaccine Rule 4(c) report

, conceding

entitlement to compensation for a right SIRVA. On June 7 , 2018, the Chief Special Master

issued a ruling on entitlement , f inding that petitioner was entitled to compensation for a Table

injury of SIRVA

.

1 This Proffer does not include attorneys’ fees and costs, which the parties intend to

address after the Damages Decision is issued.

2 The Table is located at 42 C.F.R. § 100.3.2 I I. Items of Compensation

Petitioner has alleged entitlement to the following elements of compensation: past and

future pain /s uffering and past unreimbursed expenses

. Based upon the evidence of record,

respondent proffers that petitioner should be awarded $1 15 ,00 0 .00 for past and future

pain / suffering, and $ 1 ,000.00 for past unreimbursed expenses, for a total of $ 1 16 ,000.00

. This

amount represents all elements of compensation to which petitioner would be entitled under 42

U.S.C. § 300aa

- 15(a). Petitioner agrees.

I II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $ 1 16 ,000.00

, in the form of a check payable to petitioner

. 3

Petitioner agrees.

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

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

CATHARINE E. REEVES Deputy Director
Torts Branch, Civil Division

ALEXIS B. BABCOCK

Assistant Director
Torts Branch, Civil Division

3 Should petitioner die prior to entry of judgment, respondent would oppos e any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief.3 /s/Darryl R. Wishard

DARRYL R. WISHARD

Senior Trial Attorney
Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044

- 0146
Direct dial: (202) 616

- 4357

Dated: September 24 , 2018 Fax: (202) 616

- 4310