Neddeau v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-1092V (Not to be Published) ************************* LOREN NEDDEAU, * * Filed: May 23, 2016 Petitioner, * * v. * Decision by Proffer; Damages; * Influenza (“Flu”) Vaccine; SECRETARY OF HEALTH AND * Shoulder Injury Related to Vaccine HUMAN SERVICES, * Administration (“SIRVA”). * Respondent. * * ************************* Stephen M. Reck, The Law Firm of Stephen M. Reck, LLC, North Stonington, CT, for Petitioner.

Gordon Elliot Shemin, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On September 28, 2015, Loren Neddeau filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 ECF No. 1. Petitioner alleged that he suffered from a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving the influenza (“flu”) vaccination on October 6, 2012.

Thereafter, on January 14, 2016, Respondent filed her Rule 4(c) report indicating that after reviewing the facts of this case, as reflected in the petition and accompany documents, the medical personnel of the Division of Injury Compensation Programs (“DICP”), Department of Health and Because this decision contains a reasoned explanation for my actions in this case, I will post it on the United States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public. Id. The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).

Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Human Services determined that it was appropriate for compensation under the terms of the Act.

ECF No. 12. I subsequently issued an entitlement decision on January 14, 2016. ECF No. 13.

On May 20, 2016, Respondent filed a proffer proposing an award of compensation. I have reviewed the file, and based upon that review I conclude that the Respondent’s proffer (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The proffer awards:  A lump sum payment of $300,000.00, in the form of a check payable to Petitioner.

This amount represent compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which Petitioner is entitled.

I approve a Vaccine Program award in the requested amount set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.3

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) LOREN NEDDEAU, ) ) Petitioner, ) ) No. 15-1092V v. ) Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) PROFFER ON AWARD OF COMPENSATION I. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner should be awarded $300,000.00, which represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II. Form of the Award Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $300,000.00 in the form of a check payable to petitioner. 1 Petitioner agrees.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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 pain and suffering, and future lost wages.

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 LINDA S. RENZI 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: May 20, 2016 Fax: (202) 353-2988