# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 1599 V

UNPUBLISHED

MICHELE BERNARDO

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: July 2, 2020

Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder

Injury Related to Vaccine

Administration (SIRVA)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA , for petitioner.

Christine Mary Becer , U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On October 16, 20 18

, Michele Bernardo 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 Shoulder Injury Related to Vaccine

Administration (SIRVA) as a result of her Octo ber 21, 2015 influenza ( “ flu ” ) vaccination.

Petition at 1 0

- 12

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

Special Masters.

On February 4, 2020

, a ruling on entitlement was issued , finding P etitioner

entitled to compensation for SIRVA . On June 30, 2020

, R espondent filed a p roffer on

a ward of compensation (“Proffer”) indicating P etitioner should be awarded $123,935.00

( representing $117,500.00 in compensation for pain and suffering and past

unreimbursa ble expenses in the amount of $6,435.00 )

. Proffer at 1

- 2

. In the Proffer,

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pe rtinent subparagraph of 42 U.S.C. §

300aa (2012).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.

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump

sum payment of $ 123,935.00 (representing $117,500.00 in compensation for pain

and suffering and past unreimbursable expenses in the amount of $6,435.00) 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 filing of notice

renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

MICHELE BERNARDO

, )

)

Petitioner, )

) No. 18

- 1599V

v. ) Chief Special Master Corcoran

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On O ctober 16 , 2018, Michele Bernardo (“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 sh e suffered a S houlder I njury R elated to Vaccine

Administration (“SIRVA”)

, as defined in the Vaccine Injury Table, following administration of

an influenza va ccine she received on O ctober 21, 2015

. Petition at 1

. On January 31 , 2020 , 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 F ebruary 4 , 2020, the Chief Special Master issued a Ruling on Entitleme nt finding

petitioner entit led to compensation. ECF No. 25 ; ECF No. 26

.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 117 ,5 00.00 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

awarded past unreimbur sable expenses in the amount o f $6,435.00

. See 42 U.S.C. § 300aa

15(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. 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 petitioner should be made through a

lump sum payment as described below and requests that the Chief Special Ma ster’s decision and

the Court’s judgment award the following 1 : a lump sum payment of $ 1 23,935.00

, in the form of

a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, M ichele Bernardo : $ 1 23,935.00

Respectfully submitted,

JOSEPH H. HUNT

Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

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 H EATHER L. PEARLMAN

Assistant Director

To rts Branch, Civil Division

s/Christine Mary Becer

CHRISTINE MARY BECER

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) 616

- 3665

DATED: June 30 , 2020