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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1727V
UNPUBLISHED
RAMONA MIRANDA BAEZ, Chief Special Master Corcoran
Petitioner, Filed: June 18, 2020
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)
Michael Adly Baseluos, Baseluos Law Firm, San Antonio, TX, for petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On November 7, 2018, Ramona Miranda Baez 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 the result of an influenza vaccination she
received on December 29, 2017. Petition at 1. Petitioner further alleges that she
experienced the residual effects of her SIRVA for more than six months. Petition at 1,
5. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On November 15, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for her SIRVA. On June 15, 2020, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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). 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.
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).
$120,000.00 for pain and suffering, $27,286.50 for past lost earnings, and $121,664.74
for past, unreimbursed medical expenses. 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 Petitioner a
combination of lump sum payments described below:
A. A lump sum payment of $147,286.50, representing pain and suffering
and past lost earnings, in the form of a check payable to Petitioner.
B. A lump sum payment of $1,980.00, representing compensation for past
unreimbursed vaccine injury-related expenses, in the form of a check
payable jointly to Petitioner and:
Emory Rehabilitation Outpatient Center
P.O. Box 82491
Philadelphia, Pennsylvania 19182
Petitioner has agreed to endorse this check to Emory Rehabilitation
Outpatient Center.
C. A lump sum payment of $119,684.74, representing compensation for
past unreimbursed vaccine injury-related expenses, in the form of a
check payable jointly to Petitioner and:
Grady Health System
P.O. Box 934958
Atlanta, Georgia 31193
Petitioner has agreed to endorse this check to Grady Health System.
These amounts represent 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/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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
RAMONDA MIRANDA BAEZ, )
)
Petitioner, )
) No. 18-1727V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On November 12, 2019, respondent filed a Vaccine Rule 4(c) report concluding that
petitioner sustained an injury that is compensable under the National Childhood Vaccine Injury
Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34, that is, a shoulder injury related to
vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. Accordingly, on
November 15, 2019, the Chief Special Master issued a Ruling on Entitlement.
I. Items of Compensation
A. Pain and Suffering
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$120,000.00 for pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Lost Earnings
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$27,286.50 for past lost earnings as provided under 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner
agrees.
C. Past Unreimbursed Medical Expenses
Evidence supplied by petitioner documents past unreimbursed expenses related to her
vaccine-related injury. Respondent proffers that petitioner should be awarded $121,664.74 for
past, unreimbursed medical expenses. 1 See 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a combination of lump sum payments described below, and request that the special master’s
decision and the Court’s judgment award the following:
A. A lump sum payment of $147,286.50, representing pain and suffering and past lost
earnings, in the form of a check payable to petitioner. 2
B. A lump sum payment of $1,980.00, representing compensation for past unreimbursed
vaccine injury-related expenses, in the form of a check payable jointly to petitioner
and:
Emory Rehabilitation Outpatient Center
P.O. Box 824291
Philadelphia, Pennsylvania 19182
Petitioner agrees to endorse this check to Emory Rehabilitation Outpatient Center.
1
Amounts for past, unreimbursed medical expenses will be made jointly payable to petitioner
and to the providers, as set forth below.
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.
C. A lump sum payment of $119,684.74, representing compensation for past
unreimbursed vaccine injury-related expenses, in the form of a check payable jointly
to petitioner and:
Grady Health System
P.O. Box 934958
Atlanta, Georgia 31193
Petitioner agrees to endorse this check to Grady Health System.
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/ Mollie D. Gorney
Mollie D. Gorney
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington D.C. 20044-0146
(202) 616- 4029
mollie.d.gorney@usdoj.gov
Dated: June 15, 2020