Norris v. Secretary of Health and Human Services

16-366 | Fed. Cl. | Oct 31, 2016

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-366V Filed: August 9, 2016 UNPUBLISHED * * * * * * * * * * * * * * * * * * * * * * * * * * * * SHELLEY NORRIS, *

* Petitioner, * Damages Decision Based on Proffer; v. * Influenza; * Shoulder Injury; SIRVA; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

* Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Alison Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Alexis Babcock, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES [1] Dorsey , Chief Special Master: On March 21, 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 a shoulder injury that was caused- in-fact by her October 13, 2014 influenza vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 13, 2016, a ruling on entitlement was issued, finding petitioner entitled to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On August 9, 2016, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $97,500.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based 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 $97,500.00 in the form of a check payable to petitioner, Shelley Norris. 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________ ) SHELLEY NORRIS, ) ) Petitioner, ) ) No. 16-366 v. ) Chief Special Master Dorsey ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

) Respondent. ) __________________________________________)

RESPONDENT’S PROFFER OF DAMAGES

I. Items of Compensation For the purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report filed on June 13, 2016. A. Pain and Suffering Respondent proffers that petitioner should be awarded $97,500.00 in actual and projected

pain and suffering. This amount reflects that the award for projected pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses Respondent proffers that petitioner should not be awarded any past unreimbursable

expenses related to her vaccine injury. Petitioner agrees. C. Lost Wages The parties agree that based upon the evidence of record, petitioner’s vaccine-related

injury has not impaired her earning capacity. Therefore, respondent proffers that petitioner should be awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa- 15(a)(3)(A). Petitioner agrees. II. Form of the Award

The parties recommend that compensation provided to petitioner should be made through a lump sum payment as described below and request that the Chief Special Master’s decision and the Court’s judgment award the following: [1]

A lump sum payment of $97,500.00, which represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa- 15(a), in the form of a check payable to petitioner.

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director Torts Branch, Civil Division

CATHARINE E. REEVES

Acting Deputy Director Tort Branch, Civil Division

LISA A. WATTS

Senior Trial Attorney Torts Branch, Civil Division s/ Alexis B. Babcock

ALEXIS B. BABCOCK

Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146

Dated: August 9, 2016 Telephone: (202) 616-7678

NOTES

[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.

[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).

[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

[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.