# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 0726 V
UNPUBLISHED

FRANK GIBBS

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: May 5, 2022

Special Processing Unit (SPU); Damages Decision Based on Proffer; Tetanus Diphtheria acellular Pertussis (Tdap) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC , for

Petitioner.

Matthew Murphy

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

DECISION AWARDING DAMAGES 1

On May 16, 2019

, Frank Gibbs 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 he suffered left shoulder injuries related to vaccine administration (“SIRVA”) as a result of a Tetanus Diphtheria acellular Pertu ssis (“ Tdap ”)

vaccine receiv ed on June 14, 2018 . Petition at 1

. Petitioner further alleges that he received the vaccine in the United States, his pain lasted longer than six months, and that neither Petitioner nor any other party has ever received compensation in the form of an

award or settlement for Petitioner’s vaccine

- related injury . Petition at ¶¶ 1, 7, 8 ; Ex. 1 at

1

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

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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

On March 17, 2022

, a ruling on entitlement was issued , finding P etitioner entitled to compensation for SIRVA . On May 5, 2022

, R espondent filed a p roffer on a ward of compensation (“Proffer”) indicating P etitioner should be awarded $ 101,289.03

. Proffer at

2

. 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 $ 101,289.03 (representing $100,000.00 in pain and s uffering and $1,289.03 in unreimbursable expense s) 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

FRANK GIBBS

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. 19

- 726 V Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On May 16, 2019

, Frank Gibbs (“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 he su ffered a S houlder I njury R elated to Vaccine Administration

(“SIRVA”)

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

diphtheria, and acellular pertussis (“Tdap”) va ccine he received on June 14, 2018

. Petition at 1.

On Marc h 16, 2022 , the Secretary of Health and Human Services (“respondent”) filed a n

Amended 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 March 17, 2022

, the Chief Special Master

issued a Ruling on Entitlement finding petitioner entit led to compensation. ECF No. 43 ; ECF

No. 45

.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $ 10 0 ,0 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 he incurred past unreimbursable expenses

related to his vaccine

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

unreimbur sable expenses in the amount of $ 1,289.03

. 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 Master’s decision and

the Court’s judgment award the following 1 : a lump sum payment of $ 101,289.03

, in the form of

a check payable to petitioner.

III. Summary of Rec o mmended Payments Following Judgment

Lump sum payable to petitioner, Frank Gibbs : $ 101,289.03

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy 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 TRACI R. PATTON

Assistant Director Torts Branch, Civil Division

s/ Matthew L. Murphy Matthew L. Murphy Trial Attorney
Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044

- 0146 (202) 616

- 4840 matthew.murphy@usdoj.gov

D ATED : May 5 , 2022