                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                            No. 17-1203V
                                         (Not to be published)

*************************
                           *                                    Special Master Corcoran
EDWIN M. MERCADO,          *
                           *
               Petitioner, *                                    Filed: December 3, 2018
                           *
          v.               *
                           *                                    Decision by Proffer; Damages;
SECRETARY OF HEALTH        *                                    Shoulder Injury Related to Vaccine
AND HUMAN SERVICES,        *                                    Administration (“SIRVA”); Diptheria-
                           *                                    Tetanus-Acelluar Pertussis (“Tdap”)
               Respondent. *                                    Vaccine.
                           *
*************************

John Hartman Ferguson, Medical Injury Law Center, Seattle, WA for Petitioner.

Robert Paul Coleman, III, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                                  DECISION AWARDING DAMAGES1

        On September 6, 2017, Edwin Mercado2 filed a petition seeking compensation under the
National Vaccine Injury Compensation Program.3 ECF No. 1. Petitioner alleged that he suffered a
shoulder injury related to vaccine administration (“SIRVA”)—specifically, left shoulder bursitis—
as a result of the improper administration of diptheria-tetanus-acellular pertussis (“Tdap”) vaccine

1
  Although not formally designated for publication, this Decision will be posted on the United States Court of Federal
Claims website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This means the Decision
will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however,
the parties may object to the published decision’s inclusion of certain kinds of confidential information. Specifically,
under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its current form. Id.
2
 At the time of filing, Petitioner’s legal name was Edwin M. Laird. He recently changed his last name to Mercado,
and I issued an order amending the case caption accordingly on November 26, 2018. ECF No. 25.
3
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
in his left shoulder on January 16, 2015. Id. at 1. He alleged further that he experienced lumbar
pain as a sequela of his bursitis. Id.

        On September 12, 2018, Respondent filed his Rule 4(c) Report, in which he indicated his
view that Petitioner is entitled to compensation for his bursitis claim, but not for his lumbar pain.
ECF No. 21 at 1. On October 1, 2018, I conducted a telephonic status conference with the parties,
during which Petitioner agreed to accept Respondent’s limited concession. I subsequently issued
a ruling finding entitlement (ECF No. 22, dated October 2, 2018) and an Order directing the parties
to confer regarding an appropriate damages award (ECF No. 23, dated October 2, 2018).

       After two months of damages negotiations, Respondent filed a proffer proposing an award
of compensation. ECF No. 27. I have reviewed the file, and based upon that review, I conclude
that Respondent’s Proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in
awarding damages on the terms set forth therein.

         The Proffer proposes:

         •   A lump sum payment of $95,000.00, representing compensation for actual and
             projected pain and suffering ($95,000.00), in the form of a check payable to Petitioner.

Proffer at 2. These amounts represent compensation for all elements of compensation under
Vaccine Act Section 15(a) to which Petitioner is entitled.

        I approve a Vaccine Program award in the requested amount set forth above to be made to
Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the Court is directed to enter judgment herewith.4

         IT IS SO ORDERED.

                                                                       /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Special Master




4
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

                                                           2
          Case 1:17-vv-01203-UNJ Document 27 Filed 12/03/18 Page 1 of 3



             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
___________________________________
                                    )
EDWIN M. MERCADO,                   )
                                    )
            Petitioner,             )
                                    )   No. 17-1203V (ECF)
v.                                  )   Special Master Corcoran
                                    )
SECRETARY OF HEALTH                 )
AND HUMAN SERVICES,                 )
                                    )
            Respondent.             )
____________________________________)

                       PROFFER ON AWARD OF COMPENSATION 1

I.      Procedural History

        On September 6, 2017, Edwin M. Laird (“petitioner”) filed a Petition (“Petition”) for

compensation under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C.

§§ 300aa-1 to -34 (“Vaccine Act”). Petitioner alleges that he suffered from a shoulder injury

related to vaccine administration (“SIRVA”) and lumbar pain as a result of receiving a

“Diphtheria-Tetanus-Pertussis” vaccination in his left shoulder on January 16, 2015. Petition at 1.

On September 12, 2018, respondent filed a Vaccine Rule 4(c) Report, and on October 2, 2018,

the Court found petitioner entitled to compensation, based on a theory of causation-in-fact, for

his left shoulder bursitis injury only.

II.     Item of Compensation

        The parties agree that based upon the evidence of record, petitioner is entitled to actual

and projected pain and suffering. Therefore, respondent proffers that petitioner should be



1
  This Proffer does not include attorneys’ fees and costs, which the parties intend to discuss after
the Damages Decision is issued.
          Case 1:17-vv-01203-UNJ Document 27 Filed 12/03/18 Page 2 of 3



awarded actual and projected pain and suffering as provided under the Vaccine Act, 42 U.S.C. §

300aa-15(a)(4). Respondent proffers that the appropriate award for petitioner’s actual and

projected pain and suffering is $95,000.00. Petitioner agrees.

III.   Form of the Award

       Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment as described below, and requests that the Special Master’s decision

and the Court’s judgment award the following: 2

       A lump sum payment of $95,000.00, representing compensation for actual and projected

pain and suffering ($95,000.00), in the form of a check payable to petitioner. 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

                                              ALEXIS B. BABCOCK
                                              Assistant Director
                                              Torts Branch, Civil Division




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 medical
expenses, future lost earnings, and future pain and suffering.
       Case 1:17-vv-01203-UNJ Document 27 Filed 12/03/18 Page 3 of 3



                                  s/ Robert P. Coleman III
                                  ROBERT P. COLEMAN III
                                  Trial Attorney
                                  Torts Branch, Civil Division
                                  U.S. Department of Justice
                                  P.O. Box 146
                                  Benjamin Franklin Station
                                  Washington, D.C. 20044-0146
                                  Tel: (202) 305-0274
                                  Email: Robert.P.Coleman@usdoj.gov
DATED: December 3, 2018
