Kovalcik v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-991V Filed: October 6, 2014 Not for Publication ************************************* KATHY KOVALCIK, * * Petitioner, * * Damages decision based on proffer; v. * influenza (flu) vaccine; shoulder * injury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.

Lynn E. Ricciardella, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES1 On December 13, 2013, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered a shoulder injury as a result of the influenza (“flu”) vaccination she received on October 11, 2012. On March 24, 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 October 6, 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 $130,000.00, 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 $130,000.00 made payable to petitioner, Kathy Kovalcik.

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: October 6, 2014 /s/ Laura D. Millman Laura D. Millman Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) KATHY KOVALCIK, ) ) Petitioner, ) No. 13-991V ) Special Master Millman v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ___________________________________ ) PROFFER RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Compensation for Vaccine Injury-Related Items: Respondent proffers that, based on the evidence of record, Kathy Kovalcik, petitioner, should be awarded $130,000.00. 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 Kathy Kovalcik 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 lump sum payment of $130,000.00 in the form of a check payable to petitioner, Kathy Kovalcik. This amount accounts for all elements of compensation under 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 HEATHER L. PEARLMAN Senior Trial Attorney Torts Branch, Civil Division s/ Lynn E. Ricciardella LYNN E. RICCIARDELLA 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) 616-4356

DATED: October 6, 2014