United States Court of Federal Claims, 2017

Tyree v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided March 6, 2017 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-586V Filed: November 23, 2016 UNPUBLISHED

**************************** NANCY TYREE, *

Petitioner, * Damages Decision Based on Proffer; v. * Tetanus-Diphtheria-Acellular Pertussis

* (“Tdap”); Shoulder Injury Related to SECRETARY OF HEALTH * Vaccine Administration (“SIRVA”); AND HUMAN SERVICES, * Special Processing Unit (“SPU”)

Respondent. *

**************************** Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

Adriana Teitel, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On May 17, 2016, 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 suffered a shoulder injury related to vaccine administration (“SIRVA”) following a July 3, 2015 tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 17, 2016, a ruling on entitlement was issued, finding petitioner entitled to compensation for a SIRVA. On November 23, 2016, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $80,000.00. Proffer at 2. 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 $80,000.00 in the form of a check payable to petitioner, Nancy Tyree. 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 NANCY TYREE,

Petitioner, v. No. 16-586

Chief Special Master Dorsey SECRETARY OF HEALTH AND ECF HUMAN SERVICES,

Respondent.

PROFFER ON AWARD OF COMPENSATION 1

On May 17, 2016, Nancy Tyree (“petitioner”) filed a petition for compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended. The Petition alleges that petitioner received a tetanus-diphtheria- acellular pertussis (“Tdap”) vaccination on July 3, 2015, and subsequently suffered “left shoulder injuries.” Petition at 1 (Preamble).

On October 17, 2016, the Secretary of Health and Human Services (“respondent”) filed a Vaccine Rule 4(c) Report, conceding that petitioner suffered from a shoulder injury related to vaccine administration (“SIRVA”), and recommending that the Court award petitioner compensation. Respondent hereby submits the following proffer regarding the award of compensation.

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded $80,000.00, 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 $80,000.00, in the form of a check payable to petitioner. 2 Petitioner agrees.

Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Acting Deputy Director Torts Branch, Civil Division ALTHEA W. DAVIS Senior Trial Counsel Torts Branch, Civil Division /s/ Adriana Teitel ADRIANA TEITEL Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, DC 20044-0146 Tel: (202) 616-3677

Dated: November 23, 2016

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to 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 note (2012) (Federal Management and Promotion of Electronic Government Services). 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 National 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 (2012). 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 1 This proffer does not include attorneys’ fees and costs, which the parties intend to discuss after the Damages Decision is issued. 2 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.

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