# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 1771 V UNPUBLISHED

CARIANA M. FORBUSH as administrator for E STATE OF KRISTI A. BAKER

, Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: December 20, 2021

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

Simina Vourlis, Law Offices of Simin a Vourlis, Columbus, OH , for Petitioner.

Steven Santayana , U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On November 18, 2019

, this petition for compensation was f iled under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq. 2 (the “Vaccine Act”) . Petitioner alleges that Kristi A. Baker suffered right shoulder injuries related to vaccine a dmin istration ( “ SIRVA ” ) as a result of a November 23, 2017 influenza vaccine

. Petition at 1

- 7

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

On April 12 , 2021

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for SIRVA . On December 20, 2021

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 130,750.30

. Proffer

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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

at 3

. In the Proffer, 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 $ 130,750.30 (comprised of $107,500.00 for pain and suffering, $2,524.97 for past out

- o f

- pocket expenses, $980.00 in estate costs, and $19,745.33 in past l ost wages) 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 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.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

___________________________________ _ ) CARIANA M. FORBUSH
, as administrator ) of the estate of KRISTI A. BAKER, ) ) Petitioner , ) ) No. 19

- 1771 V

v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On November 18, 2019
, Kristi A. Baker (“ original 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 Related to Vaccine

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

an influenza vaccine she received on November 23, 201 7 . Petition at 1. On April 8 , 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 April 12 , 2021, the Chief Special Master issued a Ruling on Entitlement finding original

petitioner entitled to compensation. ECF No. 35 ; ECF No. 36

. On June 1, 2021, the Chief

Special Master issued an order granting a motion for substitution of parties and to amend the

caption to substitute the orig inal petitioner with the administrator of the original p etitioner’ s

estate. ECF No. 42 ; ECF No. 40

. The motion explained that Cariana M. Forbush (“petitioner”)
,2 was appointed administrator of the original p etitioner’s estate following h er death on October 19,

2020. ECF No. 40 at 1.

Items of Compensation

Pain and Suffering

Respondent proffers that petitioner should be awarded $107,500.00 in pain and suffering.

See 42 U.S.C. § 300aa

- 15(a)(4). Petitioner agrees.

Past O ut

- of -P ocket Expenses

Evidence supplied by petitioner documents that she incurred past o ut

- of

- pocket expenses

related to the vaccine

- related injury. Respondent proffers that petitioner should be awarded past

o ut

- of

- pocket expenses in the amount of $2,524.97

. See 42 U.S.C. § 300aa

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

Petitioner agrees.

Estate Costs

Respondent proffers that petitioner should be awarded $980.00 in estate costs

. See 42

U.S.C. § 300aa

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

Lost Wages

Respondent proffers that petitioner should be awarded $ 19,745.33 in past lost wages

. See

42 U.S.C. § 300aa

- 15(a)( 3)(A) . Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is entitled

under 42 U.S.C. § 300aa

- 15(a). Petitioner agrees.

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 and3 the Court’s judgment award the following 1 : a lump sum payment of $130,750.30 , in the form of

a check payable to petitioner.

Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Cariana Forbush : $130,75 0.30

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

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ Steven C. Santayana STEVEN C. SANTAYANA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben jamin Franklin Station Washington, D.C. 20044

- 0146 Tel: (202) 451

- 7675 Fax: (202) 616

- 4310 Email: steven.c.santayana@usdoj.gov

Date: December 20 , 2021

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.