Vessey v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 14-556V Filed: March 17, 2015 (Not to be published)

*********************** JOEL VESSEY, *

* Petitioner, * Decision on Damages; Flu;

v. * SIRVA.

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

*

Respondent. *

*

*********************** Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA for petitioner. Althea W. Davis, U.S. Department of Justice, Washington, DC for respondent.

DECISION ON DAMAGES1

Gowen, Special Master:

On June 30, 2014, Joel Vessey (“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” or “Program”]. The petition alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccination on October 24, 2011. Petition at Intro. On September 26, 2014, respondent filed a Rule 4(c) Report [“Respondent’s Report”], in which she conceded that petitioner is entitled to compensation under the Program. Respondent’s Report at 2. The undersigned issued a Ruling on Entitlement on September 26, 2014 finding that petitioner is entitled to compensation.

On March 16, 2015, respondent filed a Proffer indicating that petitioner has agreed to an award of compensation in the amount of $80,000. The undersigned’s chambers contacted petitioner’s counsel on March 17, 2015, and he confirmed petitioner’s agreement with the proposed compensation amount. Pursuant to the terms in the attached Proffer, the undersigned awards petitioner the following compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):

1. A lump sum payment of $80,000.00 in the form of a check payable to petitioner, Joel Vessey.

The clerk of the court shall 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

JOEL VESSEY, )

) Petitioner, ) No. 14-556V

) Special Master v. ) Thomas L. Gowen

) ECF SECRETARY OF HEALTH ) AND HUMAN SERVICES, )

)

Respondent. )

)

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

Respondent proffers that based on the evidence of record, petitioner should be awarded $80,000.00. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 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 $80,000.00 in the form of a check payable to petitioner, Joel

Vessey. 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, BENJAMIN C. MIZER Acting Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division LINDA S. RENZI Senior Trial Counsel Torts Branch, Civil Division s/Althea Walker Davis ALTHEA WALKER DAVIS Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-0515

DATED: 13 March 2015