# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-1305V

UNPUBLISHED

SUSAN ANN KUHN,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: August 17, 2020

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

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Wa shington, DC, for

Petitioner.

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

DECISION AWARDING DAMAGES 1

On August 28, 2018, Susan Ann Kuhn fil ed a petition for com pensation under the National Vaccine Injury Compensati on Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that she su ffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an infl uenza (“flu”) vaccine administered to her left shoulder on September 19, 2017. Petition at 1. Petitioner further alleges that her injury
last for more than six months . Petition at 6. The case was assigned to the Special Processing Unit of the Offi ce of Special Masters.

On June 10, 2020, a ruling on entitlement wa s issued, finding Petitioner entitled to compensation for SIRVA. On August 17, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indi cating Petitioner should be aw arded $90,100.00 consisting of $90,000.00 in actual an d projected pain and suffering, and $100.00 for past

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 EGovernment Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be availa ble 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 whic h would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits with in this definition, I will r edact 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).2 unreimbursable expenses. Proffer at 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 $90,100.00 (consisting of $90,000.00 in actual and projected pain and suffering, and $100.00 for past unreim bursable expenses) in the form of a check payable to Petitioner. This amount represents compens ation for all damages that

would be available under § 15(a).

The clerk of the court is directed to enter judgment in a ccordance 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 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

SUSAN ANN KUHN

,

Petitioner,

v

.

SECRETARY OF HEALTH AND HUMAN
SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 18

- 1 3 0 5 V Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On April 15, 2020

, Chief S pecial Master Corcoran issued Findings of Fact, finding that

the onset of petitioner’s lef t shoulder injury related to vaccine administration (“SIRVA”)

occurred within 48 hours of vaccination. ECF No. 2 8 at 2, 7

. On June 8 , 2020, the Secretary of

Health and Human Services (“respondent”) filed an Amended Vaccine Rule 4(c) Report advising

that, in light of Chief Special Master Corcoran’s Findings of Fact ruling that the onset of

petitioner’s lef

t arm pain occurred within 48 hours of vaccination, and the medical evidence

submitted in this case, respondent did not dispute that petitioner had satisfied all legal

prerequisites for compensation under the Vaccine Act. ECF No. 30 at 2, 8

- 9

. Thereafter, on

June 10 , 2020, Chief Special Master Corcoran entered a Ruling on Entitlement, finding

petitioner, Susan Ann Kuhn , entitled to Vaccine Act compensation for her Table SIRVA injury.

ECF No. 31

.2

I. Items of Compensation

A. Pain and Suffering

Respondent now proffers that, based on the Chief Special Master’s entitlement decision

and the evidence of record, Susan Ann Kuhn should be awarded $ 9 0 ,000.00 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 Susan Ann Kuhn ’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 unreimbursable expenses in the amount of $ 100.00 , as provided under

the Vaccine Act, 42 U.S.C. § 300aa

- 15(a)(1)(B). Petitioner agrees. 1

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 Susan Ann Kuhn 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 2 : a lump sum payment of $ 90,100.00

,

1 The parties have no objection to the amount of the proffered award of damages. Assuming the

Chief S pecial M aster issues a damages decision in conformity with this proffer, the parties waive their right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa

- 12(e), to seek review of the Chief Special Master ’s June 10 , 2020

entitlement decision.

2 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 medical expenses, future pain and suffering, and future lost wages.3

representing compensation for pain and suffering ($ 9 0,000.00 ), and past unreimbursable

expenses ( $ 100.00 ), in the form of a check payable to petitioner, Susan Ann Kuhn

.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Susan Ann Kuhn : $ 90,100.00

Respectfully submitted,

ETHAN P. DAVIS Acting Assistant Attorney General

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

CATHARINE E. REEVES Deputy Director

Tor ts 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 Fax: (202) 616

- 4310

DATED: August 17

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