Judges: Thomas L. Gowen
Filed: Mar. 18, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-475V Filed: February 23, 2015 (Not to be published) *********************** MARLON SPORER * * Petitioner, * Decision on Damages; Tetanus Toxid; v. * Right-arm Injury; Abscess * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * *********************** Gerard K. Ryan, Kelner & Kelner, New York, NY for petitioner. Julia W. McInerny, United States Department of Justice, Washington, DC for respondent. DECISION O
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-475V Filed: February 23, 2015 (Not to be published) *********************** MARLON SPORER * * Petitioner, * Decision on Damages; Tetanus Toxid; v. * Right-arm Injury; Abscess * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * *********************** Gerard K. Ryan, Kelner & Kelner, New York, NY for petitioner. Julia W. McInerny, United States Department of Justice, Washington, DC for respondent. DECISION ON..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-475V
Filed: February 23, 2015
(Not to be published)
***********************
MARLON SPORER *
*
Petitioner, * Decision on Damages; Tetanus Toxid;
v. * Right-arm Injury; Abscess
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
***********************
Gerard K. Ryan, Kelner & Kelner, New York, NY for petitioner.
Julia W. McInerny, United States Department of Justice, Washington, DC for respondent.
DECISION ON DAMAGES1
Gowen, Special Master:
On June 4, 2014, Marlon Sporer (“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” or “Program”]. The petition alleges that he suffered from the Table
injury of anaphylaxis and related sequelae, or that, in the alternative, he suffered from an
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I
intend to post this ruling on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has
14 days to identify and move to delete 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 delete 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 (2006).
1
injury that was caused-in-fact by a Tetanus Toxid (“TT”) vaccine. Petition at ¶ 1. On
September 3, 2014, respondent filed a Rule 4(c) Report [“Respondent’s Report”], in which
she concedes that petitioner is entitled to compensation for a right arm injury and sterile
abscess caused-in-fact by a TT vaccination administered on April 6, 2009. Respondent’s
Report at 4. The undersigned issued a Ruling on Entitlement on September 4, 2014 in
favor of petitioner.
On February 23, 2015, respondent filed a Proffer on award of compensation,
indicating that petitioner has agreed to award of compensation in the amount of $80,000 to
be paid to petitioner only, and an amount of $76,419.83 to be paid on petitioner’s behalf to
the New York City Human Resources Administration. Petitioner’s counsel was contacted
by the undersigned’s chambers on February 23, 2015, and he confirmed petitioner’s
agreement with the proposed compensation amounts stated in the Proffer. Pursuant to the
terms in the attached Proffer, the undersigned awards petitioner the following
compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):
1. A lump sum payment of $80,000.00 in the form of a check payable to
petitioner, Marlon Sporer; and
2. A lump sum payment of $76,419.83 in the form of a check jointly payable
to petitioner and the New York City Human Resources Administration at
New York City Human Resources Administration
Division of Liens & Recovery
P.O. Box 3786 – Church Street Station
New York, NY 10008 -3786
Attn: Amy Wheeler
This amount represents full satisfaction of any right of subrogation,
assignment, claim, lien, or cause of action that the New York City
Department of Social Services and/or the State of New York may have
against any individual as a result of any Medicaid payments that the New
York City Department of Social Services and/or the State of New York has
made to or on behalf of petitioner from the date of his eligibility for benefits
through the date of judgment in this case as a result of his vaccine-related
injury suffered on or about April 6, 2009 under Title XIX of the Social
Security Act.
2
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_________________________________________
)
MARLON SPORER, )
)
Petitioner, )
) No. 14-475V
v. ) Special Master Gowan
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
The Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report on
September 3, 2014, conceding that the injury to petitioner’s right arm and related sequelae, were
caused-in-fact by the administration of his April 6, 2009, tetanus toxoid (TT) vaccine, and that
these injuries are not due to factors unrelated to the administration of the TT vaccine.
Respondent recommended that petitioner be awarded compensation for his injuries. Respondent
hereby submits the following proffer regarding the award of compensation. For the purposes of
this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report.
I. Items of Compensation and Form of the Award
Based upon the evidence of record, respondent proffers that petitioner should be awarded
the following compensation payments in the following forms:
A. A lump sum payment of $80,000.00 in the form of a check payable to petitioner;
B. A lump sum payment of $76,419.83, which amount represents full satisfaction of
any right of subrogation, assignment, claim, lien, or cause of action that the New York City
Department of Social Services and/or the State of New York may have against any individual as
a result of any Medicaid payments that the New York City Department of Social Services and/or
the State of New York has made to or on behalf of petitioner from the date of his eligibility for
benefits through the date of judgment in this case as a result of his vaccine-related injury suffered
on or about April 6, 2009 under Title XIX of the Social Security Act, in the form of a check
payable jointly to petitioner and
New York City Human Resources Administration
Division of Liens & Recovery
P.O. Box 3786 – Church Street Station
New York, NY 10008-3786
Attn: Amy Wheeler
Petitioner agrees to endorse this payment to the New York City Human Resources
Administration. Respondent proffers that these four payments represent all elements of
compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1
Petitioner agrees.
II. Summary of Recommended Payments Following Judgment
1. Lump sum paid to petitioner: $80,000.00
2. Lump sum paid jointly to petitioner and
New York Human Resources Administration
(Attn: Amy Wheeler): $76,419.83
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
MICHAEL P. MILMOE
Senior Trial Counsel
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 lost earnings, and future pain and suffering.
2
s/ JULIA W. MCINERNY
JULIA W. MCINERNY
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 353.3919
DATED: February 23, 2015
3
