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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0350V
Filed: May 21, 2019
UNPUBLISHED
KATHLEEN GULLO,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Jeffrey T. Sprague, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On March 7, 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 an influenza vaccination received on October 13,
2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On March 4, 2019, a ruling on entitlement was issued, finding petitioner entitled
to compensation for her SIRVA. On May 21, 2019, respondent filed a proffer on award
of compensation (“Proffer”) indicating petitioner should be awarded $130,000.00 in the
form of a check payable to petitioner and $1,960.96, representing compensation for
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 Because this unpublished decision contains a reasoned explanation for the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).
2
National 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).
satisfaction of the State of California Medicaid lien, in the form set forth below. 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 $130,000.00 in the form of a check payable to
petitioner, Kathleen Gullo, and a lump sum payment of $1,960.96, representing
compensation for satisfaction of the State of California Medicaid lien, in the form
of a check payable jointly to petitioner and:
Department of Health Care Services
Recovery Branch – MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
(Ref# C96013915D-VAC03)
Petitioner agrees to endorse a check to the State of California for satisfaction of the
Medicaid lien.
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
___________________________________
)
KATHLEEN GULLO, )
)
Petitioner, ) No. 18-350V ECF
)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On March 7, 2018, Kathleen Gullo (“petitioner”) filed a petition for compensation
(“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34, as amended. She alleges that, as a result of receiving the influenza vaccine on October 13,
2016, she suffered from a left shoulder injury related to vaccine administration (“SIRVA”).
Petition. On March 4, 2019, respondent filed his Vaccine Rule 4(c) report, conceding SIRVA as
a Table injury. On March 4, 2019, the Chief Special Master issued a ruling on entitlement,
finding that petitioner was entitled to compensation for SIRVA.
II. Items of Compensation
A. Pain and Suffering
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a lump sum of $130,000.00 for pain and suffering, paid in the form of a check to petitioner.
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to
address after the Damages Decision is issued.
B. Medicaid Lien
Respondent proffers that petitioner should be awarded funds to satisfy the
State of California Medicaid lien in the amount of $1,960.96, which represents
full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the
State of California may have against any individual as a result of any Medicaid
payments the State of California has made to or on behalf of petitioner 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 October 13, 2016 under Title XIX of the Social
Security Act.
These amounts represent all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
III. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a combination of lump sum payments as described below, and requests that the special
master’s decision and the Court’s judgment award the following:
A. A lump sum payment of $130,000.00 in the form of a check payable to petitioner;
and
B. A lump sum payment of $1,960.96, representing compensation for satisfaction of the
State of California Medicaid lien, in the form of a check payable jointly to petitioner
and:
2
Department of Health Care Services
Recovery Branch - MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
(Ref# C96013915D-VAC03)
Petitioner agrees to endorse a check to the State of California for satisfaction of the
Medicaid lien. 2
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
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
/s/Jeffrey T. Sprague
JEFFREY T. SPRAGUE
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4179
Dated: May 21, 2019 Fax: (202) 616-4310
2
Should petitioner 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