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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-185V
Filed: December 30, 2019
UNPUBLISHED
CHRISTIE KIRBY,
Special Master Horner
Petitioner,
v. Damages Decision Based on Proffer;
Influenza (“flu”) vaccine; Radial
SECRETARY OF HEALTH AND Nerve Injury
HUMAN SERVICES,
Respondent.
Richard Gage, Richard Gage P.C., Cheyenne, WY, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
On February 8, 2016, 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 from right arm pain as a result from
her receipt of influenza (“flu”) vaccine on October 8, 2013. (Pet.) The case was
reassigned to me on June 6, 2019. (ECF No. 46.) On July 22, 2019, an entitlement
hearing was held. Thereafter, on November 1, 2019, a ruling on entitlement was
issued, finding petitioner entitled to compensation for her radial nerve injury.
On December 30, 2019, respondent filed a proffer on award of compensation
(“Proffer”) indicating petitioner should be awarded $25,000.00. (ECF No. 67, p. 1.) In
the Proffer, respondent represented that petitioner agrees with the proffered award.
1I intend 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, I agree that the identified
material fits within this definition, I will redact such material from public access. Because this unpublished
decision 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).
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).
(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 petitioner
$25,000.00. 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/ Daniel T. Horner
Daniel T. Horner
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
)
CHRISTIE KIRBY, )
)
Petitioner, ) No. 16-185V
v. ) Special Master Horner
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
)
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On November 1, 2019, Special Master Horner issued a Ruling on Entitlement finding that
petitioner was entitled to vaccine compensation for a right radial nerve injury. Based on the
evidence of record, respondent proffers that petitioner should be awarded $25,000.00.1 This
amount represents all elements of compensation to which petitioner would be entitled under 42
U.S.C. § 300aa-15(a). 2 Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $25,000.00, in the form of a check payable to petitioner. Petitioner
1
The parties have no objection to the amount of the proffered award of damages. However,
respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Special
Master’s November 1, 2019 entitlement decision.
2
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 lost earnings
and future pain and suffering.
agrees.
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/ Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 305-0660
DATED: December 30, 2019