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  5. Gray v. Secretary of Health and Human Services, 18-0223V. (2019)

Gray v. Secretary of Health and Human Services, 18-0223V. (2019)

Court: United States Court of Federal Claims Number: infdco20191122b06 Visitors: 6
Filed: Sep. 23, 2019
Latest Update: Sep. 23, 2019
Summary: UNPUBLISHED DECISION AWARDING DAMAGES 1 NORA BETH DORSEY , Chief Special Master . On February 14, 2018, 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 related to vaccine administration ("SIRVA") causally related to the influenza vaccination she received on October 13, 2016. Petition at 3, 16. The case was assigned to the S
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UNPUBLISHED

DECISION AWARDING DAMAGES1

On February 14, 2018, 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 related to vaccine administration ("SIRVA") causally related to the influenza vaccination she received on October 13, 2016. Petition at ¶¶ 3, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On May 7, 2019, a ruling on entitlement was issued, finding petitioner entitled to compensation for her SIRVA. On September 23, 2019, respondent filed a proffer on award of compensation ("Proffer") indicating petitioner should be awarded $90,000.00, representing compensation for petitioner's pain and suffering. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. 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 $ 90,000.00, representing compensation for petitioner's pain and suffering, in the form of a check payable to petitioner, Marcia Gray. 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.

RESPONDENT'S PROFFER ON AWARD OF COMPENSATION

I. Compensation for Vaccine Injury-Related Items

On May 7, 2019, respondent filed a Rule 4(c) Report conceding entitlement in this case. On that date, the Chief Special Master issued a Ruling on Entitlement finding that petitioner was entitled to vaccine compensation for his Shoulder Injury Related to Vaccine Administration ("SIRVA"). Respondent proffers that based on the evidence of record, petitioner should be awarded $90,000.00, for pain and suffering. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a)(1); 15(a)(3)(A); and 15(a)(4). Petitioner agrees.

II. Form of the Award

The parties recommend that the 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 $90,000.00, in the form of a check payable to petitioner, Marcia Gray. This amount accounts for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled.

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 ALEXIS BABCOCK Assistant Director Torts Branch, Civil Division /s/Paul E. Werner PAUL E. WERNER Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 7146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 616-4152 Dated: September 23, 2019

FootNotes


1. The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is 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).
2. National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
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.
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.
Source:  Leagle
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Citations
18-0223V.
Counsels
  • Isaiah Richard Kalinowski
  • Paul Elias Werner
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