Menser v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-455V

Filed: August 26, 2014

Not for Publication *************************************

ERIN MENSER, * *

Petitioner, * * Damages decision based on proffer; v. * influenza (flu) vaccine; shoulder * injury related to vaccine SECRETARY OF HEALTH * administration (SIRVA) AND HUMAN SERVICES, * *

Respondent. * * *************************************

Maximillian J. Muller, Philadelphia, PA, for petitioner.

Alexis B. Babcock, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES1

On May 27, 2014, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered a left shoulder injury as a result of the influenza (“flu”) vaccination she received on August 30, 2013. On August 22, 2014, respondent filed her Rule 4(c) Report, conceding that petitioner suffered from a shoulder injury related to vaccine administration (“SIRVA”) and recommending compensation.

On August 26, 2014, respondent filed Respondent’s Proffer on Award of Compensation. The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole, the undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to the terms stated in the attached proffer, the court awards a lump sum payment of $80,000.00, representing all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). The award shall be in the form of a check for $80,000.00 made payable to petitioner.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

Dated: August 26, 2014 /s/ Laura D. Millman Laura D. Millman Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS __________________________________________ )

ERIN MENSER, ) )

Petitioner, ) ) No. 14-455 v. ) Special Master Millman )

SECRETARY OF HEALTH AND )

HUMAN SERVICES, ) )

Respondent. ) __________________________________________)

RESPONDENT’S PROFFER OF DAMAGES

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded $80,000.00, which represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees with this amount.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made through a lump sum payment of $80,000.00 in the form of a check payable to petitioner.

Respectfully submitted, STUART F. DELERY Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division

VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

ALTHEA W. DAVIS

Senior Trial Counsel

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

Tel.: (202) 616-7678

Dated: August 26, 2014