Thomure v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-0322V Filed: November 2, 2015 Unpublished

**************************** BEATRICE THOMURE, *

* Petitioner, * Damages Decision Based on Proffer;

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

SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit AND HUMAN SERVICES, * (“SPU”)

* Respondent. *

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

DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

On March 30, 2015, Beatrice Thomure (“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 as a result of an influenza (“flu”) vaccination on October 1, 2013, petitioner suffered a brachial plexus injury. The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On July 6, 2015, a ruling on entitlement was issued, finding petitioner entitled to compensation for a Shoulder Injury Related to Vaccine Administration (“SIRVA”). On October 30, 2015, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $101,454.00 in actual and projected pain and suffering, and $1,546.00 in unreimbursed expenses. Proffer at 1. Lost wages were not awarded. Id. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based on the record as a whole, the undersigned finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $103,000.00 in the form of a check payable to petitioner, Beatrice Thomure. The payment consists of $101,454.00 in past and future pain and suffering, and $1,546.00 in past unreimbursed expenses. 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. 3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________

)

BEATRICE THOMURE, )

)

Petitioner, )

) No. 15-322 v. ) Chief Special Master Dorsey

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

__________________________________________)

RESPONDENT’S PROFFER OF DAMAGES

I. Items of Compensation

For the purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report filed on July 6, 2015. This proffer contains all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1

A. Pain and Suffering Respondent proffers that petitioner should be awarded $101,454.00 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.

B. Past Unreimbursed Expenses Petitioner has submitted documentation for $1,546.00 in unreimbursed expenses in this case, to which respondent has no objection. Thus respondent proffers that petitioner should be awarded $1,546.00 for past unreimbursed expenses. Petitioner agrees.

C. Lost Wages The parties agree that based upon the evidence of record, petitioner’s vaccine-related injury has not impaired her earning capacity. Therefore, respondent proffers that petitioner should be awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa- 15(a)(3)(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 of $103,000.00 in the form of a check payable to petitioner. The payment consists of $101,454.00 in past and future pain and suffering, and $1,546.00 in past unreimbursed expenses.

Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division VINCENT J. MATANOSKI Deputy Director Tort Branch, Civil Division LINDA S. RENZI Senior Trial Counsel Torts Branch, Civil Division s/ Alexis B. Babcock ALEXIS B. BABCOCK Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146

Dated: October 30, 2015 Telephone: (202) 616-7678