# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 1673 V

UNPUBLISHED

SUSAN FITZGERALD

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: August 2, 2021

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, Washington, DC , for petitioner.

N ancy Tinch , U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On October 29, 2019

, Susan Fitzgerald 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 vaccin e administration (“SIRVA”) as a result of an influenza vaccine received on October 31,

2017 . Petit ion at 1 . The case was assigned to the Special Processing Unit of the Office of Special Masters.

On May 18, 2021

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for SIRVA . On July 30, 2021

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 95,20 5 .12

. Proffer at

2

. In the Proffer, R espondent represented that P etitioner agrees with the proffered 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 section references to the Vaccine Act will be to the pertinent subpara graph of 42 U.S. C. § 300aa (2012 ).2

Id. Based on the record as a whole, I find that P et itioner is entitled to an award as stated

in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump sum payment of $ 95,205.12 (comprised of $95,000.00 for pain and suffering and $205.12 for past unrei mbursable expenses) in the form of a check payable to

P etitioner

. This amount represents compensation for all damages that w ould 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 fil ing of notice renouncing the right to seek review.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

SUSAN FITZGERALD,

Petitioner,

v.

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent. No. 19-1673V Chief Special Master Corcoran

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On October 29, 2019, Susan Fitzgerald (“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 R elated to Vaccine

Administration (“SIRVA”) , as defined in the Vaccine Injury Table, following administration of

an influenza vaccine she received on October 31, 2017. Petition (“Pet.”) at 1. On May 17, 2021,

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 May 18, 2021, the Chie f Special Master issued a Ruling on Entitlement finding

petitioner entitled to compensation. ECF No. 21.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $95,000.00 in pain and suffering.

See 42 U.S.C. § 300aa- 15(a)(4). Petitioner agrees.2 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

awa rded past unreimbursable expenses in the amount of $205.12. See 42 U.S.C. § 300aa15(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. Fo rm of the Award

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 $95,205.12, in

the form of a check payable to petitioner.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Susan Fitzgerald: $95,205.12

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

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.3 LARA A. ENGLUND

Assistant Director Torts Branch, Civil Division

/s/ NANCY O. TINCH Nancy O. Tinch Trial Attorney Torts Branch, Civil Division U.S. Department of Justice

P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 (202) 305-2078 nancy.tinch@usdoj.gov

Dated: July 30, 2021