         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 18-119V
                                      Filed: April 3, 2019
                                        UNPUBLISHED


    DANIEL BOITS,

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


Brenton Aaron Elswick, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

      On January 24, 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, as a result of receiving the influenza (“flu”)
vaccine on November 1, 2016, he suffered from a left shoulder injury related to vaccine
administration (“SIRVA”). Petition at 1-4. The case was assigned to the Special
Processing Unit of the Office of Special Masters.

        On November 8, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for his shoulder injury. On March 11, 2019, respondent filed a
proffer on award of compensation (“Proffer”) indicating petitioner should be awarded
$80,245.62, including $77,500.00 for pain and suffering, and $2,745.62 for past

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 Because this unpublished decision contains a reasoned explanation for the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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
unreimbursed expenses. Proffer at 1. In the Proffer, respondent represented that
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 $80,245.62 in the form of a check payable to
petitioner, Daniel Boits. This amount represents compensation for all damages that
would be available under § 15, except for any amounts which may be awarded for
attorneys’ fees and costs under § 15(e).

       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
___________________________________
                                     )
DANIEL BOITS,                        )
                                     )
       Petitioner,                   )    No. 18-119V ECF
                                     )
              v.                     )    Chief Special Master Dorsey
                                     )
SECRETARY OF HEALTH                  )
AND HUMAN SERVICES,                  )
                                     )
       Respondent.                   )
___________________________________ )

                      PROFFER ON AWARD OF COMPENSATION 1

I.     Procedural History

       On January 24, 2018, Daniel Boits (“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. He alleges that, as a result of receiving the influenza (“flu”) vaccine on

November 1, 2016, he suffered from a left shoulder injury related to vaccine administration

(“SIRVA”). Petition at 1-4. On November 5, 2018, respondent filed his Vaccine Rule 4(c)

report, conceding a Table injury for SIRVA. On November 8, 2018, the Chief Special Master

issued a ruling on entitlement, finding that petitioner was entitled to compensation for SIRVA.

II.    Items of Compensation

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

a lump sum of $80,245.62 ($77,500.00 for pain and suffering, and $2,745.62 for past

unreimbursed expenses) for all damages. This amount represents all elements of compensation




       1
         This Proffer does not include attorneys’ fees and costs, which the parties intend to
address after the Damages Decision is issued.
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 $80,245.62, in the form of a check payable to petitioner. 2

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

                                             /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: March 11, 2019                        Fax: (202) 616-4310




       2
          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
