Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 14-576V

Filed: February 11, 2015

************************* GREGORY SMITH *

* Petitioner, * Damages Decision Based on Proffer;

* Tetanus-diphtheria-acellular pertussis v. * (“Tdap”) Vaccine; Shoulder Injury

* Related to Vaccine Administration * (“SIRVA”); Special Processing Unit * (“SPU”)

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

************************* Marvin Firestone, Esq., Marvin Firestone, MD, JD and Associates, San Mateo, CA, for petitioner.

Heather Pearlman, Esq., U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

On July 8, 2014, Gregory Smith 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 a Tetanus- diphtheria-acellular pertussis (“Tdap”) vaccination on July 11, 2011, petitioner suffered a left shoulder injury and related sequelae. Petition at 6. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On October 29, 2014, I issued a ruling on entitlement, finding petitioner entitled to compensation. On February 10, 2015, respondent filed a proffer on award of compensation (“Proffer”) detailing compensation for all elements of compensation to which petitioner would be entitled under §15(a). According to respondent’s Proffer, petitioner agrees to the proposed award of compensation.

Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $201,882.12 in the form of a check payable to petitioner.

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. s/Denise K. Vowell Denise K. Vowell Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS ____________________________________

)

GREGORY SMITH, )

)

Petitioner, ) No. 14-576V

) Chief Special Master Vowell v. ) ECF

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

)

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 October 29, 2014, conceding entitlement in this case. Respondent proffers that, based on the evidence of record, petitioner should be awarded $201,882.12. 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 $201,882.12 in the form of a check payable to petitioner,

Gregory Smith. 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/ Heather L. Pearlman HEATHER L. PEARLMAN Senior 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) 353-2699 Fax: (202) 616-4310

Dated: February 10, 2015