Spilman v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 15-0037V Filed: November 16, 2015 Unpublished

**************************** PATRICIA LYNNE SPILMAN, *

*

Petitioner, * Damages Decision Based on Proffer;

* Tetanus Vaccine; Shoulder Injury * Related to Vaccine Injury (“SIRVA”);

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

*

Respondent. *

*

**************************** Paul R. Brazil, Muller Brazil, LLP, for petitioner.

Michael Patrick Milmoe, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On January 12, 2015, 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”]. Petitioner alleges that she sustained shoulder injuries, including rotator cuff tear, tendinosis, and fluid collection as a result of a tetanus vaccine she received on April 6, 2014. Petition at 1, 3. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 9, 2015, a ruling on entitlement was issued finding petitioner entitled to compensation. On November 13, 2015, respondent filed a proffer on award of compensation [“Proffer”] stating that petitioner should be awarded $67,500.00. Proffer at 1. 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 $67,500.00 in the form of a check payable to petitioner, Patricia Lynne Spilman. 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 ____________________________________

)

PATRICIA LYNNE SPILMAN, )

)

Petitioner, ) No. 15-37V

) Chief Special Master Dorsey v. ) ECF

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

)

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

On June 8, 2015, respondent filed a Rule 4(c) Report conceding that petitioner was entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”). Respondent proffers that, based on the evidence of record, petitioner should be awarded $67,500.00. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a)(1); 15(a)(3)(A); and 15(a)(4). Petitioner agrees.

II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment as described below, and requests that the special master’s decision and the Court’s judgment award the following: 1

A. A lump sum payment of $67,500.00 in the form of a check payable to petitioner, Patricia

Lynne Spilman. 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 Principal Deputy 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/ Michael P. Milmoe MICHAEL P. MILMOE Senior Trial Counsel Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 616-4125

Dated: November 13, 2015 Fax: (202) 616-4310