Kim v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 14-1090V

Filed: April 16, 2015

Unpublished

**************************** VIRGIL KIM, *

*

Petitioner, * Damages Decision Based on Proffer;

* Tetanus-Diphtheria-acellular Pertussis; * TDaP; Table Injury; Brachial Neuritis;

SECRETARY OF HEALTH * Brachial Plexitis; Special Processing AND HUMAN SERVICES, * Unit

*

Respondent. *

*

**************************** Amber Wilson, Esq., Maglio, Christopher, and Toale, PA (DC), Washington, DC for petitioner.

Claudia Gangi, Esq., U.S. Department of Justice, Washington, DC for respondent.

DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

On November 7, 2014, Virgil Kim 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”]. Petitioner alleges that he “developed pain in the left shoulder and he was suffering from numbness and tingling in his hands” after receiving the DTaP and influenza vaccinations on October 12, 2013. Petition at 1. Petitioner was “diagnosed . . . with left brachial plexitis triggered by vaccination (DTaP).” Petition at 2. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 10, 2015, I issued a ruling on entitlement, finding petitioner had established that he suffered a Table injury (brachial neuritis) and was entitled to compensation. On April 14, 2015, respondent filed a proffer on award of compensation [“Proffer”] indicating petitioner should be awarded “a lump sum payment of $91,255.90 (representing compensation for actual and projected pain and suffering, past unreimbursable expenses related to the vaccine-related injury, and projected unreimbursable expenses related to the vaccine-related injury).” Proffer at 1-2.

Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $91,255.90 in the form of a check payable to petitioner, Virgil Kim. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

The clerk of the court is directed to enter judgment in accordance with this decision.3 s/Denise K. Vowell Denise K. Vowell Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS _______________________________________

)

VIRGIL KIM, )

)

Petitioner, )

)

v. ) No. 14-1090V

) Chief Special Master Vowell SECRETARY OF HEALTH AND HUMAN ) ECF SERVICES, )

)

Respondent. )

) RESPONDENT'S PROFFER ON DAMAGES

Respondent submits the following recommendations regarding items of compensation to be awarded to petitioner under the Vaccine Act.

I. Items of Compensation

A. Future Medical Care Expenses Respondent proffers that based on the evidence of record, petitioner is entitled to an award of $1,000.00 for projected unreimbursable medical care expenses as provided under 42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.

B. Lost Earnings Respondent proffers that based upon the evidence of record, petitioner has not and is not likely to suffer a loss of earnings as a result of his vaccine-related injury. Accordingly, the Court should not award lost future earnings as provided under § 300aa-15(a)(3)(A). Petitioner agrees.

C. Pain and Suffering Respondent proffers that petitioner should be awarded $90,000.00 in actual and projected pain and suffering. This amount reflects that the award for projected pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

D. Past Unreimbursed Expenses Evidence supplied by petitioner documents his expenditure of past un-reimbursable expenses related to his vaccine-related injury. Respondent proffers that the petitioner is entitled to past un-reimbursed expenses in the amount of $255.90. Petitioner agrees.

E. Medicaid Lien Petitioner represents that there are no outstanding Medicaid liens related to his vaccine- related injury.

F. Attorneys’ Fees and Costs This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing substantiating documentation.

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 Chief Special Master’s decision and the Court’s judgment award the following : a lump sum payment of $91,255.90 (representing compensation for actual and projected pain and suffering, past unreimbursable expenses related to the vaccine-related injury, and projected unreimbursable expenses related to the vaccine-related injury), in the form of a check payable to petitioner. 1

III. Summary of Recommended Payments Following Judgment A lump sum payment of $91,255.90, representing compensation for actual and projected pain and suffering, and past and projected unreimbursable expenses related to the vaccine-related injury, payable to petitioner.

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 LYNN E. RICCIARDELLA Senior Trial Attorney Torts Branch, Civil Division /s/ Claudia B. Gangi CLAUDIA B. GANGI 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) 616-4138

Dated: April 14, 2015