Fox v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 14-462V Filed: September 26, 2014 (Not to be published)

**************************** LESLIE FOX, *

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Petitioner, * Decision on Damages; Flu; SIRVA v. *

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SECRETARY OF HEALTH * AND HUMAN SERVICES, *

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Respondent. *

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**************************** William Cochran, Jr., Esq., Black McLaren Jones Ryland & Griffee, PC, Memphis, TN for petitioner.

Gordin Shemin, Esq., U.S. Department of Justice, Washington, DC for respondent.

DECISION ON DAMAGES1 Gowen, Special Master:

On June 2, 2014, Leslie Fox 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 as a result of an influenza vaccine administered to her on November 28, 2012, she suffered arm and shoulder injuries, including adhesive capsulitis. Petition at 1. On August 25, 2014, respondent filed her Rule 4(c) Report [“Respondent’s Report”], in which she concedes that petitioner is entitled to compensation in this case. Respondent’s Report at 1. I issued a Ruling on Entitlement on September 25, 2014.

On September 25, 2014, respondent filed a proffer on award of compensation, which indicated that petitioner agreed to the compensation amount. Additionally, petitioner’s counsel was contacted by my chambers on September 25, 2014, and he confirmed petitioner’s agreement with the proposed compensation amount contained within the filed Proffer. Pursuant to the terms stated in the attached Proffer, I award petitioner:

1. A lump sum payment of $90,421.79 in the form of a check payable to petitioner, Leslie Fox. 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/Thomas L. Gowen Thomas L. Gowen Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________

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LESLIE FOX, )

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Petitioner, ) No. 14-462V

) Special Master Gowen v. ) ECF

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SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

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Respondent. )

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RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Compensation for Vaccine Injury-Related Items

For purposes of this Proffer, the term “vaccine-related” is described in Respondent’s Rule 4(c) Report, filed on August 25, 2014, conceding entitlement in this case. Respondent proffers that, based on the evidence of record, petitioner should be awarded $90,421.79. This amount represents all elements of compensation to which petitioner would be 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 special master’s decision and the Court’s judgment award the following: 1

A. A lump sum payment of $90,421.79 in the form of a check payable to petitioner, Leslie

Fox. This amount accounts for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner would be entitled.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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 /s/ Gordon Shemin GORDON SHEMIN Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4208

Dated: September 25, 2014 Fax: (202) 353-2988