Stout v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-026V Filed: April 23, 2015

**************************** ELAINE STOUT, *

* *

Petitioner, * Damages Decision Based on Proffer;

* Influenza (“flu”) vaccine; Shoulder Injury v. * Related to Vaccine Administration

* (“SIRVA”); Special Processing Unit

* (“SPU”)

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

**************************** Michael McLaren, Black McLaren Jones Ryland & Griffee, Memphis, TN, for petitioner. Gordon Shemin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Vowell, Chief Special Master:

On January 9, 2015, Elaine Stout 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 (“flu”) vaccination on January 10, 2013, petitioner suffered a shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On April 15, 2015, I issued a ruling on entitlement, finding petitioner entitled to compensation. On April 22, 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 $79,444.74 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 ____________________________________

)

ELAINE STOUT, )

)

Petitioner, ) No. 15-26V

) Chief Special Master Vowell v. ) ECF

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

) Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation

For purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report, filed on April 15, 2015, conceding entitlement in this case. Based upon the evidence of record, respondent proffers that petitioner should be awarded $79,444.74, consisting of $1,944.74 in past unreimbursable expenses and $77,500.00 in pain and suffering. This represents all elements of competition to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a) for her vaccine-related injury. 1 Petitioner agrees.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made through a lump sum payment described below, and request that the Special Master’s decision and the Court’s judgment award the following:

A. A lump sum of $79,444.74 in the form of a check payable to petitioner, Elaine

Stout. This amounts 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 Principal Deputy 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: April 22, 2015 Fax: (202) 353-2988