# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 0906 V

UNPUBLISHED

DANA SHERROD

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: August 3, 2022

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

Jessica Olins, Maglio Christopher & Toale, PA, Washington, DC , for Petitioner.

James Vincent Lopez , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On June 20, 2019

, Dana Sherrod 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 as a result of an

inf luen za vaccination she received on September 25, 2017

. Petition at ¶¶ 18

- 19

. The case

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

On June 30, 2022

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for her left shoulder injury

. ECF No. 37. On August 2, 2022

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be

awarded $ 99,295.71 (comprised of $95,000.00 i n pain and suffering and $4,295.71 in past unreimburs able expe nses)

. Proffer at 1

- 2

. In the Proffer, R espondent represented

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 f its 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 p ertinent subparagraph of 42 U.S.C. § 300aa (2012).2 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.

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump sum payment of $ 99,295.71 (comprised of $95,000.00 in pain an d suffering and $4,295.71 in past unreimburs a ble expens es) in the form of a check payable to

P etitioner

. This amount represents compensation for all damages that w ould be available

under Section 15 (a)

.

The Clerk of 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 filing of notice renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

___________________________________ )

DANA SHERROD

, ) ) Petitioner, ) ) No. 19

- 906 V

v. ) Chief Special Master Brian H. Corcoran ) ECF

SECRETARY OF HEALTH AND )
HUMAN SERVICES, ) ) Respondent. ) ____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On June 20, 2019, Dana Sherrod (“petitioner”) filed a petition for compensation under

the Nation al Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

- 34 (“Vaccine Act”

or “Act”) , alleging that s he suffered a S houlder I njury R elated to Vaccine Administration

(“SIRVA”)

, as defined in the Vaccine Injury Table, following administration of a n infl u enza

(“flu ”) va ccine s he received on September 25 , 20 17

. On June 30, 2022, respondent filed an

Amended Rule 4(c) Report electing not to defend this case and requesting a ruling on the record,

in light of t he Findings of Fact by the Chief Special Mast er on May 18, 2022. ECF No s . 3 4, 36

.

O n June 30 , 202 2

, the Chief Special Master issued a Ruling on Entitlement finding petitioner

entit led to compensation. EC F No. 37.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 95

, 0 00.00 in pain and suffering

.

See 42 U.S.C. § 300aa

- 15(a)(4). Petitioner agrees.2 B. Past Unreimbursable Expenses

Evidence supplie d by petitioner documents that s he incurred past unre imbursable

expenses related to her vaccine

- related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $ 4,295.71

. See 42 U.S.C. § 300aa

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

These amounts represent all e lements of compensation 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 required in this case.

Respondent recommends that the compensa tion 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 $ 99

, 295

. 71

, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Dana Sherrod : $ 99

, 295

. 71 2

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

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 The parties have no obj ection to the amount of the proffered award of damages. Assuming the Chief Special Master 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 r ight,
pursuant to 42 U.S.C. § 300aa

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

decision.3 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 James V. Lopez

J ames V. Lopez Trial Attorney
Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, D.C. 20044

- 0146 Tel: (202) 616

- 3655 Fax: (202) 616

- 4310

Email: james.lopez@usdoj.gov

Date: August 2 , 2022