Gotch v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0028V
Filed: May 10, 2019
UNPUBLISHED
MATTHEW GOTCH,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Hepatitis B (Hep B) Vaccine;
HUMAN SERVICES, Shoulder Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Theodore J. Hong, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On January 5, 2018, 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a hepatitis B vaccine received on March 25,
2016. Petition at 1-2. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On February 26, 2019, a ruling on entitlement was issued, finding petitioner
entitled to compensation for his SIRVA. On May 10, 2019, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $74,622.76
(representing $72,500.00 for pain and suffering and $2,122.76 for past out-of-pocket
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 Because this unpublished decision contains a reasoned explanation for the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).
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).
medical expenses). Proffer at 1-2. 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 $74,622.76 (representing $72,500.00 for pain
and suffering and $2,122.76 for past out-of-pocket medical expenses) in the form
of a check payable to petitioner, Matthew Gotch. 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.
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IN THE UNITED STATES COURT OF FEDERAL
CLAIMS OFFICE OF SPECIAL MASTERS
**************************************
MATTHEW GOTCH, *
*
Petitioner, * No. 18-28V
* CHIEF SPECIAL MASTER
v. * NORA BETH DORSEY
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
**************************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On February 26, 2019, respondent filed a Rule 4(c) Report, conceding that petitioner’s
claim meets the Table criteria for a SIRVA injury. On that same date, the Court issued a Ruling
on Entitlement finding petitioner entitled to compensation under the Vaccine Act.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
the following, and requests that the Chief Special Master’s decision and the Court’s judgment
award:
1. A lump sum payment of $72,500.00, which represents compensation for pain and
suffering, see 42 U.S.C. § 300aa-15(a)(4); and
2. A payment of $2,122.76, which represents compensation for past out-of-pocket
medical expenses, see 42 U.S.C. § 300aa-15(a)(1).
These amounts represent all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a).1 Petitioner agrees.
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Should petitioner die prior to the entry of judgment, the parties reserve the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future pain
and suffering.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that petitioner be awarded a lump sum payment of $74,622.76, in the
form of a check payable to petitioner. Petitioner agrees.
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/ DEBRA A. FILTEAU BEGLEY
DEBRA A. FILTEAU BEGLEY
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-4181
Dated: May 10, 2019
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