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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1482V
UNPUBLISHED
MARY RIVIERE, Chief Special Master Corcoran
Petitioner, Filed: April 13, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Pneumococcal Conjugate Vaccine;
Cellulitis
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On September 26, 2018, Mary Riviere 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 alleged that she suffered cellulitis, sepsis injuries, and left
extremity injuries caused in fact by the administration of the pneumococcal conjugate
vaccine she received on November 3, 2016. Petition at 1, ¶¶ 2, 14.The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On November 8, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for her cellulitis. On April 13, 2020, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded
$55,000.00, representing compensation for her pain and suffering. Proffer at 1. In the
Proffer, Respondent represented that Petitioner agrees with the proffered award. Id.
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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).
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 lump
sum payment of $55,000.00, representing compensation for Petitioner’s pain and
suffering, in the form of a check payable to Petitioner. 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/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
MARY RIVIERE,
Petitioner,
Case No. 18-1482V (ECF)
v. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On September 26, 2018, petitioner filed a petition seeking compensation under the
Vaccine Act for cellulitis/sepsis in her upper left arm that she claimed occurred following
a pneumococcal conjugate (“pneumococcal”) vaccine administered on November 3,
2016. On November 8, 2019, respondent conceded that entitlement to compensation was
appropriate under the terms of the Vaccine Act. Thereafter, on December 27, 2019, the
Special Master issued a Ruling on Entitlement, finding that petitioner was entitled to
vaccine compensation under the Vaccine Act.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be
awarded $55,000.00, for pain and suffering. This amount represents 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 lump sum payment described below, and request that the Chief Special
Master’s decision and the Court’s judgment award the following: 1 a lump sum of
$55,000.00 in the form of a check payable to petitioner. Petitioner 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
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
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, future pain and suffering, and future lost wages.
2
s/ Mark K. Hellie
MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
T: (202) 616-4208
E: mark.hellie@usdoj.gov
DATED: April 13, 2020
3