Opinion

Gill v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Aug 14, 2019
Status
Unpublished
On the bench
Nora Beth Dorsey
Cited by
0 cases

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-0280V

Filed: May 7, 2019

UNPUBLISHED

CHERYL GILL,

Petitioner,

v. Special Processing Unit (SPU);

Damages Decision Based on Proffer;

SECRETARY OF HEALTH Influenza (Flu) Vaccine; Shoulder

AND HUMAN SERVICES, Injury Related to Vaccine

Administration (SIRVA)

Respondent.

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.

Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for

respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On February 28, 2017, Cheryl Gill (“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 injuries as a

result of her September 26, 2014 influenza (“flu”) vaccination. Petition at 1-2. The case

was assigned to the Special Processing Unit of the Office of Special Masters.

On April 1, 2019, a ruling on entitlement was issued, finding petitioner entitled to

compensation for SIRVA. On May 6, 2019, respondent filed a proffer on award of

compensation (“Proffer”) indicating petitioner should be awarded $70,000.00. Proffer at

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 Because this unpublished decision contains a reasoned explanation for the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).

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 $70,000.00, in the form of a check payable to

petitioner, Cheryl Gill. 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

CHERYL GILL,

Petitioner, No. 17-280V

Chief Special Master Dorsey

v. ECF

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Compensation for Vaccine Injury-Related Items

On February 1, 2019, Chief Special Master Dorsey issued a Fact Ruling, finding that the

onset of petitioner’s alleged shoulder injury occurred within the 48-hour Table time frame for a

Shoulder Injury Related to Vaccine Administration (“SIRVA”). Thereafter,

on March 29, 2019, respondent requested that the Court issue a ruling on the record, and on

April 1, 2019, Chief Special Master Dorsey issued a Ruling on Entitlement finding that petitioner

was entitled to vaccine compensation for her SIRVA. Based on the evidence of record,

respondent proffers that petitioner should be awarded $70,000.00. 1 This amount represents all

elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 2

Petitioner agrees.

1

The parties have no objection to the amount of the proffered award of damages. However,

respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special

Master’s April 1, 2019 entitlement decision, incorporating the February 1, 2019 Fact Ruling.

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 lost earnings

and future pain and suffering.

II. Form of the Award

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

a lump sum payment of $70,000.00, in the form of a check payable to petitioner. 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

GABRIELLE M. FIELDING

Assistant Director

Torts Branch, Civil Division

s/ Mallori B. Openchowski

MALLORI B. OPENCHOWSKI

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146, Ben Franklin Station

Washington, DC 20044-0146

Tel.: (202) 305-0660

DATED: May 6, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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