Gutierrez v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
MICHELLE GUTIERREZ, *
* No. 12-485V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: May1, 2015
*
SECRETARY OF HEALTH * Damages; decision based on proffer;
AND HUMAN SERVICES, * human papillomavirus (“HPV”);
* vasovagal syncope; skull fracture;
Respondent. * post-concussion syndrome.
******************** *
Alfonso Melendez, Alfonso L. Melendez, P.C., El Paso, TX, for Petitioner;
Claudia Gangi, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING DAMAGES1
On August 2, 2012, Raul Gutierrez and Martha Gil filed a petition on behalf
of their minor daughter, Michelle Gutierrez2, seeking compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa –10 through
34 (2012), alleging that the human papillomavirus (“HPV”) vaccination caused
Michelle Gutierrez to suffer vasovagal syncope, a skull fracture, and post-
concussion syndrome secondary to the vaccination.
On April 29, 2015, respondent filed a Proffer on Award of Compensation, to
which petitioner agrees. Based upon the record as a whole, the special master
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
2
This case was recaptioned on April 17, 2015, due to Michelle Gutierrez no longer being
a minor having turn 18 years old on March 11, 2015.
finds the proffer reasonable and that petitioner is entitled to an award as stated in
the Proffer. Pursuant to the attached Proffer, the court awards petitioner:
A. A lump sum payment of $60,000.00, representing compensation for
actual and projected pain and suffering, in the form of a check
payable to petitioner, Michelle Gutierrez.
B. A lump sum payment of $10,998.60, representing compensation for
satisfaction of the Superior HealthPlan lien, payable jointly to
petitioner and:
Superior HealthPlan
5615 High Point Drive, Suite 100
Attn: Case Management Department
Irving, TX 75038
Petitioner agrees to endorse this payment to the Superior HealthPlan.
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 12-485V according to this decision
and the attached proffer.3
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2
Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 1 of 4
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_______________________________________
)
MICHELLE GUTIERREZ, )
)
Petitioner, )
)
v. ) No. 12-485V
) Special Master Moran
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT'S PROFFER ON DAMAGES
Respondent submits the following recommendations regarding items of compensation to
be awarded to petitioner under the Vaccine Act.
I. Items of Compensation
A. Future Medical Care Expenses
Respondent proffers that based on the evidence of record, Michelle Gutierrez
(“petitioner”) is not entitled to an award for future medical care expenses as provided under 42
U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.
B. Lost Earnings
Respondent proffers that based upon the evidence of record, petitioner has not and is not
likely to suffer a loss of earnings as a result of her vaccine-related injury as provided under 42
U.S.C. § 300aa-15(a)(3)(B). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that the Court should award petitioner a lump sum of $60,000.00 for
her actual and projected pain and suffering. This amount reflects that the award for projected
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Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 2 of 4
pain and suffering has been reduced to net present value. See § 300aa-15(a)(4). Petitioner
agrees.
D. Past Unreimbursable Expenses
Respondent proffers that based upon the evidence of record, petitioner did not incur any
past unreimbursable expenses related to her vaccine-related injury. Petitioner agrees.
E. Medicaid Lien
Respondent proffers that petitioner should be awarded funds to satisfy the Superior
HealthPlan lien in the amount of $10,998.60, which represents full satisfaction of any right of
subrogation, assignment, claim, lien, or cause of action the Superior HealthPlan may have
against any individual as a result of any Medicaid payments the Superior HealthPlan has made
to or on behalf of Michelle Gutierrez from the date of her eligibility for benefits through the
date of judgment in this case as a result of her vaccine-related injury suffered on or about
August 6, 2009, under Title XIX of the Social Security Act.
F. Attorney’s Fees and Costs
This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to
reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing
substantiating documentation.
II. Form of the Award
A. The parties recommend that the compensation provided to petitioner should be
made through a lump sum payment as described below and request that the Special Master’s
decision and the Court’s judgment award the following : a lump sum payment of $60,000.00
2
Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 3 of 4
(representing compensation for actual and projected pain and suffering), in the form of a check
payable to petitioner. 1
B. A lump sum payment of $10,998.60, representing compensation for satisfaction of
the Superior HealthPlan lien, payable jointly to petitioner and
Superior HealthPlan
5615 High Point Drive, Suite 100
Attn: Case Management Department
Irving, TX 75038
Petitioner agrees to endorse this payment to the Superior HealthPlan.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner: $60,000.00
B. Lump Sum paid jointly to petitioner and Superior HealthPlan: $10,998.60
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
1
Should Michelle Gutierrez 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.
3
Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 4 of 4
/s/ Claudia B. Gangi
CLAUDIA B. GANGI
Senior 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) 616-4138
Dated: April 29, 2015
4