         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1979V
                                     Filed: October 4, 2018
                                         UNPUBLISHED


    JACKIE DUTY,

                        Petitioner,                          Special Processing Unit (SPU);
    v.                                                       Damages Decision Based on Proffer;
                                                             Tetanus Diphtheria acellular
    SECRETARY OF HEALTH AND                                  Pertussis (Tdap) Vaccine; Shoulder
    HUMAN SERVICES,                                          Injury Related to Vaccine
                                                             Administration (SIRVA)
                       Respondent.


John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On December 19, 2017, petitioner 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 that she suffered a Table Injury, shoulder injury
related to vaccine administration (“SIRVA”), after receiving a tetanus, diphtheria, and
acellular pertussis vaccination on December 31, 2015. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.

        On September 21, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for SIRVA. On October 4, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $115,963.87,
representing $115,000.00 for past and future pain and suffering and $963.87 for past
unreimbursed expenses. Proffer at 2. In the Proffer, respondent represented that


1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National 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 pertinent subparagraph of 42 U.S.C. §
300aa (2012).
petitioner agrees with the proffered award. Id. Based on the record as a whole, the
undersigned finds that petitioner 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 $115,963.87, representing $115,000.00 for
actual and projected pain and suffering and $963.87 for actual unreimbursable
expenses in the form of a check payable to petitioner, Jackie Duty. This amount
represents compensation for all damages that would 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/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          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.


                                                      2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS
___________________________________
                                    )
JACKIE DUTY,                        )
                                    )
       Petitioner,                  )    No. 17-1979V ECF
                                    )
              v.                    )    Chief Special Master Dorsey
                                    )
SECRETARY OF HEALTH                 )
AND HUMAN SERVICES,                 )
                                    )
       Respondent.                  )
___________________________________ )

                        PROFFER ON AWARD OF COMPENSATION 1

I.     Procedural History

       On December 19, 2017, Jackie Duty (“petitioner”) filed a petition for compensation

(“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34, as amended. She alleges that, as a result of receiving the tetanus-diphtheria-acellular

pertussis (“Tdap”) vaccine on December 31, 2015, she suffered from a left shoulder injury

related to vaccine administration (“SIRVA”), which is an injury listed on the Vaccine Injury

Table (“Table”) for the Tdap vaccine. 2 Petition at 1. On September 19, 2018, respondent filed

his Vaccine Rule 4(c) report, conceding entitlement to compensation for a left SIRVA. On

September 21, 2018, the Chief Special Master issued a ruling on entitlement, finding that

petitioner was entitled to compensation for a Table injury of SIRVA.




       1
         This Proffer does not include attorneys’ fees and costs, which the parties intend to
address after the Damages Decision is issued.
       2
           The Table is located at 42 C.F.R. § 100.3.
II.    Items of Compensation

       Petitioner has alleged entitlement to the following elements of compensation: past and

future pain/suffering and past unreimbursed expenses. Based upon the evidence of record,

respondent proffers that petitioner should be awarded $115,000.00 for past and future

pain/suffering, and $963.87 for past unreimbursed expenses, for a total of $115,963.87. This

amount represents all elements of compensation to which petitioner would be entitled under 42

U.S.C. § 300aa-15(a). Petitioner agrees.

III.   Form of the Award

       Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment of $115,963.87, in the form of a check payable to petitioner. 3

Petitioner agrees.

                                             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

                                             HEATHER L. PEARLMAN
                                             Assistant Director
                                             Torts Branch, Civil Division


       3
          Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.

                                                 2
                         /s/Darryl R. Wishard
                         DARRYL R. WISHARD
                         Senior Trial Attorney
                         Torts Branch, Civil Division
                         U. S. Department of Justice
                         P.O. Box l46, Benjamin Franklin Station
                         Washington, D.C. 20044-0146
                         Direct dial: (202) 616-4357
Dated: October 4, 2018   Fax: (202) 616-4310




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