# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-581V

Filed: March 9, 2015

* * * * * * * * * * * * * * *

ASHLEY BURKART, * UNPUBLISHED

* Special Master Dorsey

Petitioner, *

*

v. *

* Decision on Proffer; Damages;

SECRETARY OF HEALTH * Tetanus-Diphtheria-Acellular

AND HUMAN SERVICES, * Pert ussis (TDAP) Vaccine; Shoulder

* Injury Related to Vaccine

Respondent. * Administration (SIRVA)

*

* * * * * * * * * * * * * * *

Thomas P. Gallagher, Somers Point, NJ, for petitioner.

Jennifer Leigh Reynaud, United States Department of Justice, Washingt on, DC, for respondent.

DECISION AWARDING DAMAGES 1

On July 9, 2014, Ashley Burkart (“petitioner” ) filed a petition for compensation pursuant

to the National Vaccine Injury Compensation Program. 2 42 U.S.C. §§ 300aa-1 to -34 (2006).

Petitioner alleged that she received a tetanus-dipht heria-acellular pertussis (TDaP) vaccination in

her left shoulder on September 2, 2012, and subseque ntly suffered a should er injury related to

vaccine administration (SIRVA) as a result of the TDaP vaccination. See Petition at

Introduction.

1 Because this decision contains a reasoned explan ation for the undersigned’s action in this case,

the undersigned intends to post th is ruling on the website of the United States Court of Federal

Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116

Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by

Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any

information furnished by that party: (1) that is a trade secret or commercial or financial in

substance and is priv ileged or confidential; or (2) that includes medical files or similar files, the

disclosure of which would const itute a clearly unwarra nted invasion of privacy.” Vaccine Rule

18(b).

2 The National Vaccine Injury Compensation Prog ram is set forth in Part 2 of the National

Childhood Vaccine Injury Act of 1986, Pub. L. N o. 99-660, 100 Stat. 3755, codified as amended,

42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to

individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2 On October 27, 2014, respondent filed a report pu rsuant to Vaccine Rule 4(c) conceding

that petitioner is entitled to comp ensation in this case. Respondent ’s Report at 4-5. Specifically,

respondent agreed that the alleged injury was cons istent with shoulder injury related to vaccine

administration (“SIRVA”). Id. at 4.

On March 7, 2015, respondent filed a Proffer on Award of Compensation (“Proffer”). In

the Proffer, respondent represented that petitione r agrees with the proffered award. Based on the

record as a whole, the undersigned finds that pet itioner is entitled to an award as stated in the

Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner:

A lump sum payment of $35,000.00, in the form of a check payable to petitioner,

Ashley Burkart . Respondent states that petitio ner is a competent adult and that

guardianship is not required in this case . This amount accounts for all elements of

compensation under 42 U.S.C. § 300aa-15(a) to which petitioner would be entitled.

Proffer ¶ II.

In the absence of a motion for review file d pursuant to RCFC Appendix B, the clerk of

the court SHALL ENTER JUDGMENT herewith. 3

IT IS SO ORDERED.

s/ Nora Beth Dorsey

Nora Beth Dorsey

Special Master

3 Pursuant to Vaccine Rule 11(a) , entry of judgment is expedite d by the parties’ joint filing of

notice renouncing the ri ght to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

ASHLEY BURKART

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. No. 1 4

- 581 V

Special Master Dorsey

ECF

PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded

$35 ,000.00, which represents all elements of compensation to which petitioner would be entitled

under 42 U.S.C. § 300aa

- 15(a). Petitioner agrees.

II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made

t hrou gh a lump sum payment of $35 ,000.00 in the form of a check payable to petitioner. 1

Petitioner agrees.

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

Respectfully submitted,

BENJAMIN C. MIZER

Acting 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 medical

expenses, future pain and suffering, and future lost wages.

1RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

HEATHER L. PEARLMAN

Senior Trial Attorney

Torts Branch, Civil Division

s/ Jennifer L. Reynaud

JENNIFER L. REYNAUD

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) 305

- 1586

Date: M arch 7 , 2015

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