Comeiro v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-1075V Filed: June 30, 2015 **************************** KAREN COMEIRO, * * Petitioner, * Damages Decision Based on Proffer; * Trivalent Influenza or Flu Vaccine; * Injection Site Injury SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * **************************** Erika Todd, Esq., Arrowood Peters LLP, Boston, MA for petitioner.

Justine Walters, Esq., U.S. Department of Justice, Washington, DC for respondent.

DECISION AWARDING DAMAGES1 Vowell, Chief Special Master: On November 4, 2014, Karen Comeiro 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 alleged that she suffered injuries to include “severe blistering and disfigurement at the injection site” which were caused by the trivalent flu vaccine she received on October 8, 2013.3 The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2006).

3 Petition at 1. Initially, petitioner also alleged that she suffered an adverse effect on her rheumatoid arthritis (an ongoing condition) because she was forced to abstain from taking at least one of her rheumatoid arthritis medications which was interfering with the healing of the injection site injury. Petition at 4-5. Respondent disputed vaccine causation for this additional injury. See Respondent’s Rule 4(c) Report [“Res. Report”] at 2, 9-10. On March 2, 2015, petitioner’s counsel informed the OSM staff attorney managing this case by email that petitioner had agreed to narrow her claim to exclude any claim of aggravation of her rheumatoid arthritis.

On March 2, 2015, I issued a ruling on entitlement, finding petitioner entitled to compensation. On June 30, 2015, respondent filed a proffer on award of compensation [“Proffer”] indicating petitioner should be awarded $85,000.00. Proffer at 1. According to respondent’s Proffer, petitioner agrees to this proposed amount. Id. Pursuant to the terms stated in the attached Proffer, I award petitioner a lump sum payment of $85,000.00 in the form of a check payable to petitioner, Karen Comeiro. This amount represents compensation for all damages that would be available under § 300aa-15(a).

The clerk of the court is directed to enter judgment in accordance with this decision.4 s/Denise K. Vowell Denise K. Vowell Chief Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.

Case 1:14-vv-01075-UNJ Document 20 Filed 06/30/15 Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) KAREN COMEIRO, ) ) Petitioner, ) ) No. 14-1075V v. ) Chief Special Master Vowell ) SPU SECRETARY OF HEALTH AND ) ECF HUMAN SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded $85,000.00, which represents all elements of compensation to which petitioner is entitled under U.S.C. § 300aa-15(a). 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 of $85,000.00 in the form of a check payable to petitioner.

Petitioner agrees.

Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering.

Case 1:14-vv-01075-UNJ Document 20 Filed 06/30/15 Page 2 of 2

VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division ALTHEA W. DAVIS Senior Trial Counsel Torts Branch, Civil Division s/ Justine Walters JUSTINE WALTERS 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) 307-6393 DATE: June 30, 2015