Gram v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-0305V
Filed: February 2, 2017
Unpublished
****************************
ERICH MICHAEL GRAM, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Trivalent Influenza (“Flu”) Vaccine;
* Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH * Administration (“SIRVA”);
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
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Dan W. Bolton, III, Esq., Bolton Law, PLLC, Cary, NC, for petitioner.
Michael P. Milmoe, Esq., U.S. Department of Justice, Washington, DC for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On March 25, 2015, Erich Michael Gram (“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 alleged that he suffered a shoulder
injury related to vaccine administration (“SIRVA”) caused by the trivalent influenza
vaccine he received on October 23, 2013. The case was assigned to the Special
Processing Unit (“SPU”) of the Office of Special Masters.
On August 4, 2015, a ruling on entitlement was issued, finding petitioner entitled
to compensation for SIRVA. On February 1, 2017, respondent filed a proffer on award
of compensation (“Proffer”) indicating petitioner should be awarded $207,573.00.
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.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
2National 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).
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $207,573.00 (comprised of $160,000.00 in past
and future pain and suffering, $30,000.00 in past and future lost wages,
$13,823.00 in past unreimbursable expenses, and $3,750.00 in future medical
expenses), in the form of a check payable to petitioner, Erich Michael Gram. This
amount represents compensation for all damages that would be available under §
300aa-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
____________________________________
)
ERICH MICHAEL GRAM, )
)
Petitioner, ) No. 15-305V
) 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 August 4, 2015, the Chief Special Master issued a Ruling on Entitlement determining
that petitioner was entitled to vaccine compensation for his Shoulder Injury Related to Vaccine
Administration (“SIRVA”). Respondent proffers that, based on the evidence of record,
petitioner should be awarded $207,573.00, comprised of $160,000.00 in past and future pain and
suffering, $30,000.00 in past and future lost wages, $13,823.00 in past unreimbursable expenses,
and $3,750.00 in future medical expenses. This amount represents all elements of compensation
to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. 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 Chief Special Master’s
decision and the Court’s judgment award the following: 1
A. A lump sum payment of $207,573.00 in the form of a check payable to petitioner, Erich
Michael Gram. This amount accounts for all elements of compensation under 42 U.S.C.
§ 300aa-15(a) to which petitioner would be entitled.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
VORIS E. JOHNSON
Senior Trial Attorney
Torts Branch, Civil Division
/s/ Michael P. Milmoe
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-4125
Dated: February 1, 2017 Fax: (202) 616-4310
1
Should petitioner die prior to entry of judgment, respondent reserves the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future
medical expenses, future pain and suffering, and future lost wages.