Opinion

Novak v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Nov 21, 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Unpublished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. 17-1967V

Filed: September 23, 2019

UNPUBLISHED

CHANDRA NOVAK,

Petitioner,

v. Special Processing Unit (SPU);

Damages Decision Based on Proffer;

SECRETARY OF HEALTH Tetanus Diphtheria acellular

AND HUMAN SERVICES, Pertussis (Tdap) Vaccine; Shoulder

Injury Related to Vaccine

Respondent. Administration (SIRVA)

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

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

respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On December 18, 2017, Chandra Novak (“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 a right

shoulder injury related to vaccine administration (“SIRVA”) as a result of a tetanus-

diphtheria-acellular pertussis (“Tdap”) vaccine she received on February 17, 2015.

Petition at 1. The case was assigned to the Special Processing Unit of the Office of

Special Masters.

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 Because this unpublished decision contains a reasoned explanation for the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

On November 7, 2018, a ruling on entitlement was issued, finding petitioner

entitled to compensation. On September 23, 2019, respondent filed a proffer on award

of compensation (“Proffer”) indicating petitioner should be awarded $55,100.00,

comprised of $55,000.00 for pain and suffering, and $100.00 for petitioner’s

unreimbursed medical 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 $55,100.00 (comprised of $55,000.00 for pain

and suffering, and $100.00 for petitioner’s unreimbursed medical expenses), in

the form of a check payable to petitioner, Chandra Novak. 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

CHANDRA NOVAK,

Petitioner, No. 17-1967V

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 November 5, 2018, respondent conceded that entitlement to compensation was

appropriate under the terms of the Vaccine Act. Thereafter, on November 7, 2018, Chief Special

Master Dorsey issued a Ruling on Entitlement finding that petitioner was entitled to vaccine

compensation for her bursitis that was caused-in-fact by the Tdap vaccine she received on

February 17, 2015. Based on the evidence of record, respondent proffers that petitioner should

be awarded $55,100.00, comprised of $55,000.00 for pain and suffering, and $100.00 for

petitioner’s unreimbursed medical expenses. This amount represents all elements of

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

agrees.

1

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 $55,100.00, 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

HEATHER L. PEARLMAN

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: September 23, 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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