Day v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0888V
Filed: March 27, 2017
Unpublished
****************************
NANCY DAY, *
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza (“Flu”) Vaccine; Shoulder
v. * Injury Related to Vaccine Administration
* (“SIRVA”); Special Processing Unit
SECRETARY OF HEALTH * (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Michael G. McLaren, Black, McLaren, et al., Memphis, TN, for petitioner.
Glenn A. MacLeod, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On July 26, 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 alleged that she suffered a left shoulder injury as a result of an
influenza (“flu”) vaccination received on October 1, 2015. The case was assigned to the
Special Processing Unit (“SPU”) of the Office of Special Masters.
On November 18, 2016, the undersigned issued a ruling on entitlement finding
petitioner entitled to compensation for a shoulder injury related to vaccine administration
(“SIRVA”). On March 27, 2017, respondent filed a proffer on award of compensation
(“Proffer”) indicating petitioner should be awarded $130,000.00. Proffer at 1. In the
Proffer, respondent represented that petitioner agrees with the proffered award. Based
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). 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.
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).
on the 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 $130,000.00 in the form of a check payable to
petitioner, Nancy Day. 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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*****************************
*
NANCY DAY, *
*
Petitioner, *
*
v. * No. 16-888V (ECF)
* CHIEF SPECIAL MASTER
* NORA BETH DORSEY
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*****************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On November 18, 2016, the Chief Special Master found that a preponderance of the
medical evidence indicates that petitioner suffered a left shoulder injury related to vaccine
administration (“SIRVA”), which was causally related to the influenza (“flu”) vaccination she
received on October 1, 2015. The parties now address the amount of compensation to be
awarded in this case.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$130,000.00, which represents all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
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.
II. Form of the Award
Petitioner is a competent adult. Accordingly, the parties recommend that the
compensation provided to petitioner should be made through a lump sum payment of
$130,000.00 in the form of a check payable to petitioner. Petitioner agrees.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
LINDA S. RENZI
Senior Trial Counsel
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: March 27, 2017
2