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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-656V
Filed: May 17, 2019
UNPUBLISHED
MISTY TITUS,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Tetanus Diphtheria acellular
HUMAN SERVICES, Pertussis (Tdap) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On January 19, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a tetanus-diphtheria-acellular pertussis (“Tdap”)
vaccine administered on February 18, 2015. Petition at 1, 8. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On January 23, 2018, a ruling on entitlement was issued, finding petitioner
entitled to compensation for a SIRVA. On May 14, 2019, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $336,781.23
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 Because this unpublished decision contains a reasoned explanation for the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).
consisting of $100,000.00 for pain and suffering, $229,523.18 for lost wages, and
$7,258.05 for out-of-pocket 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 $336,781.23 consisting of $100,000.00 for pain
and suffering, $229,523.18 for lost wages, and $7,258.05 for out-of-pocket
expenses in the form of a check payable to petitioner, Misty Titus. 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
)
MISTY TITUS, )
)
Petitioner, )
) No. 17-656V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On January 19, 2018, respondent filed his Rule 4(c) Report conceding entitlement in the
above-captioned case. Chief Special Master Dorsey issued a Ruling on Entitlement on January
23, 2018, finding that petitioner was entitled to vaccine compensation for her Shoulder Injury
Related to Vaccine Administration (“SIRVA”). Based on the evidence of record, respondent
proffers that petitioner should be awarded $336,781.23. This amount includes $100,000.00 for
pain and suffering; $229,523.18 for lost wages; and $7,258.05 for out-of-pocket expenses, and it
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 be made through a
lump sum payment of $336,781.23 in the form of a check payable to petitioner.1 Petitioner agrees.
1
Should petitioner die prior to the 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.
1
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/Amy P. Kokot
AMY P. KOKOT
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Ben Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4118
Dated: May 14, 2019
2