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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1013V
Filed: April 8, 2015
Unpublished
****************************
CATHERINE SMITH, *
*
Petitioner, * Damages Decision Based on Proffer;
* Trivalent Influenza or Flu Vaccine;
* Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH * Administration; SIRVA; Special
AND HUMAN SERVICES, * Processing Unit
*
Respondent. *
*
****************************
Michael G. McLaren, Esq., Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN
for petitioner.
Julia W. McInerny, Esq., U.S. Department of Justice, Washington, DC for respondent.
DECISION AWARDING DAMAGES1
Vowell, Chief Special Master:
On October 20, 2014, Catherine Smith filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she suffered a shoulder injury
related to vaccine administration [“SIRVA”] caused by the trivalent influenza vaccination
she received on October 5, 2013. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On March 16, 2015, I issued a ruling on entitlement, finding petitioner entitled to
compensation for her shoulder injury related to vaccine administration [“SIRVA”]. On
April 8, 2015, respondent filed a proffer on award of compensation [“Proffer”] indicating
petitioner should be awarded $76,000.00 “which represents all elements of
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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, I agree that the identified material fits within this definition, I 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 (2006).
compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).”
Proffer at 1.
Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $76,000.00 in the form of a check payable to petitioner, Catherine
Smith. 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
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
Case 1:14-vv-01013-UNJ Document 19 Filed 04/08/15 Page 1 of 2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
CATHERINE SMITH, )
)
Petitioner, )
) No. 14-1013V
v. ) Chief Special Master Vowell
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$76,000.00, which represents all elements of compensation to which petitioner would be entitled
under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $76,000.00 in the form of a check payable to petitioner.
Petitioner agrees.
Respectfully submitted,
BENJAMIN C. MIZER
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
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 medical
expenses, future lost earnings, and future pain and suffering.
Case 1:14-vv-01013-UNJ Document 19 Filed 04/08/15 Page 2 of 2
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Julia W. McInerny
JULIA W. MCINERNY
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
DATED: April 8, 2015 (202) 353-3919
2