Bradley v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1535V
UNPUBLISHED
KENNETH A. BRADLEY, Chief Special Master Corcoran
Petitioner, Filed: December 11, 2019
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
On October 4, 2018, Kenneth A. Bradley 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 that he suffered a left shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination received
on January 26, 2018. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On November 4, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for his SIRVA. On December 10, 2019, Respondent filed a
proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded
$85,423.06, including a lump sum of $85,000.00 payable to Petitioner and a lump sum
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
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). This means the ruling 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, 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 (2012).
of $423.06 representing compensation for satisfaction of the State of Maine’s Medicaid
lien. Proffer at 1-2. In the Proffer, Respondent represented that Petitioner agrees with
the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled
to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award the following:
1. A lump sum payment of $85,000.00 in the form of a check payable to
Petitioner; and
2. A lump sum payment of $423.06, representing compensation for
satisfaction of the State of Maine’s Medicaid lien, payable jointly to
Petitioner and:
Treasurer, State of Maine
c/o Kelly S. Kramer
Reimbursement Specialist
Third Party Liability
DHHS/OMS
11 State House Station
Augusta, ME 04333-0011
Petitioner agrees to endorse this payment to the State of Maine.
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
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
*************************
*
KENNETH A. BRADLEY, *
*
Petitioner, *
*
v. * No. 18-1535V (ECF)
* CHIEF SPECIAL MASTER
* BRIAN H. CORCORAN
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On November 1, 2019, respondent filed his Vaccine Rule 4(c) report conceding that
petitioner’s claim meets the Table criteria for SIRVA. On November 4, 2019, the Court entered
its Ruling on Entitlement, finding petitioner, Kenneth A. Bradley, entitled to Vaccine Act
compensation. Respondent herein proffers the following amount(s) of reasonable compensation
due petitioner.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a lump sum total of $85,423.06, which amount represents all elements of compensation to which
petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
Respondent proffers that (as included in the amount above), petitioner should be awarded
funds to satisfy the State of Maine’s Medicaid lien in the amount of $423.06, which represents
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 and future pain and suffering.
full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State
of Maine may have against any individual as a result of any Medicaid payments the State of
Maine has made to or on behalf of petitioner from the date of his eligibility for benefits through
the date of judgment in this case as a result of his vaccine-related injury suffered on or about
January 26, 2018, under Title XIX of the Social Security Act.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through the lump sum payments described below, and request that the Chief Special Master's
decision, and the Court's judgment, award the following:
(a): A lump sum payment of $85,000.00 in the form of a check payable to petitioner,
Kenneth A. Bradley. 2 Petitioner agrees.
(b): A lump sum payment of $423.06, representing compensation for satisfaction of the
State of Maine’s Medicaid lien, payable jointly to petitioner and,
Treasurer, State of Maine
c/o Kelly S. Kramer
Reimbursement Specialist
Third Party Liability
DHHS/OMS
11 State House Station
Augusta, ME 04333-0011
Petitioner agrees to endorse this payment to the State of Maine.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
2
Petitioner is a competent adult. No guardianship is required.
2
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/ GLENN A. MACLEOD
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4122
DATE: December 10, 2019
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