          In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 18-0033V
                                       Filed: May 31, 2019
                                         UNPUBLISHED


    LEAH DELESLIE MONTGOMERY,

                          Petitioner,                        Special Processing Unit (SPU);
    v.                                                       Damages Decision Based on Proffer;
                                                             Influenza (Flu) Vaccine; Shoulder
    SECRETARY OF HEALTH AND                                  Injury Related to Vaccine
    HUMAN SERVICES,                                          Administration (SIRVA)

                         Respondent.


Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

                                DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On January 5, 2018, 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 she suffered left shoulder pain and deficits
causally related to the influenza vaccination she received on November 28, 2016.
Petition at ¶¶ 1, 13-14. The case was assigned to the Special Processing Unit of the
Office of Special Masters.

        On April 30, 2019, a ruling on entitlement was issued, finding petitioner entitled to
compensation for her shoulder injury related to vaccine administration (“SIRVA”). On
May 30, 2019, respondent filed a proffer on award of compensation (“Proffer”) indicating
petitioner should be awarded $91,793.21, representing $90,000.00 for pain and
suffering and $1,793.21 for past out of pocket medical expenses. Proffer at 1. In the
Proffer, respondent represented that petitioner agrees with the proffered award. Id.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).

2   National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
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 $91,793.21, representing $90,000.00 for pain
and suffering and $1,793.21 for actual unreimbursable expenses in the form of a
check payable to petitioner, Leah DeLeslie Montgomery. 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


 LEAH DELESLIE MONTGOMERY,     )
                               )
           Petitioner,         )
 v.                            )                     No. 18-33V
                               )                     Chief Special Master Dorsey
 SECRETARY OF HEALTH AND HUMAN )                     ECF
 SERVICES,                     )
                               )
           Respondent.         )
                               )

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.     Items of Compensation

       On April 30, 2019, respondent conceded that entitlement to compensation was

appropriate under the terms of the Vaccine Act. Chief Special Master Dorsey issued a Ruling on

Entitlement the same day, finding that petitioner was entitled to vaccine compensation for her

left-sided shoulder injury related to vaccination administration (“SIRVA”). Based upon the

evidence of record, respondent proffers that petitioner should be awarded $91,793.21. The

award is comprised of the following: $90,000.00 for pain and suffering; and $1,793.21 for past

out of pocket medical expenses. This amount represents all elements of compensation to which

petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. 1




       1
          As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to 42
U.S.C. § 300aa-21(a)(1) and an application, the parties will submit to further proceedings before
the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this
petition.
 II.          Form of the Award

          The parties recommend that compensation provided to petitioner should be made through

a lump sum payment of $91,793.21, in the form of a check payable to petitioner. 2 Petitioner

agrees.

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

                                                       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

                                                       ALEXIS B. BABCOCK
                                                       Assistant Director
                                                       Torts Branch, Civil Division

                                                       s/ Traci R. Patton
                                                       TRACI R. PATTON
                                                       Senior Trial Attorney
                                                       Torts Branch, Civil Division
                                                       U.S. Department of Justice
                                                       P.O. Box 146
                                                       Benjamin Franklin Station
                                                       Washington, D.C. 20044-0146
                                                       Telephone: (202) 353-1589

Dated: May 31, 2019




          2
         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 pain
and suffering.
                                                   2
