Rice v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1192V
Filed: November 30, 2015
Unpublished
****************************
CHARLES K. RICE, *
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza (“Flu”) Vaccine; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
****************************
Patrick Joseph Austin, Esq., Shapiro, Lewis, et al., Virginia Beach, VA, for petitioner.
Michael Patrick Milmoe, Esq., U.S. Department of Justice, Washington, DC for
respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On December 11, 2014, 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” or “Program”]. Petitioner alleges that he suffered a shoulder injury
caused by the influenza vaccine he received on November 8, 2012. Petition, ¶¶ 11-12.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On June 16, 2015, a ruling on entitlement was issued, finding petitioner entitled
to compensation for his Shoulder Injury Related to Vaccine Administration [“SIRVA”].
On November 27, 2015, respondent filed a proffer on award of compensation [“Proffer”]
indicating petitioner should be awarded $45,000.00. Proffer at 1. In the Proffer,
respondent represented that petitioner agrees with the proffered award. Based on the
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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, 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
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).
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 $45,000.00 in the form of a check payable to
petitioner, Charles K. Rice. 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
Case 1:14-vv-01192-UNJ Document 33 Filed 11/27/15 Page 1 of 2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
CHARLES K. RICE, )
)
Petitioner, ) No. 14-1192V
) 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 June 15, 2015, respondent filed a Rule 4(c) Report conceding 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 $45,000.00. This amount represents all elements of compensation to which petitioner
would be entitled under 42 U.S.C. § 300aa-15(a)(1); 15(a)(3)(A); and 15(a)(4). 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 special master’s decision
and the Court’s judgment award the following: 1
A. A lump sum payment of $45,000.00 in the form of a check payable to petitioner, Charles
K. Rice. This amount accounts for all elements of compensation under 42 U.S.C.
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.
Case 1:14-vv-01192-UNJ Document 33 Filed 11/27/15 Page 2 of 2
§ 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,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
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: November 27, 2015 Fax: (202) 616-4310