United States Court of Federal Claims, 2017

Biers-Melcher v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided April 17, 2017 · George L. Hastings

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-742V

(Not to be published)

*************************

* AMANDA BIERS-MELCHER, *

* Petitioner, * Filed: March 20, 2017

* v. * Decision by Proffer; Vaccine Act

* Entitlement; Damages; Influenza SECRETARY OF HEALH * Vaccine; Shoulder Injury Related to HUMAN SERVICES * Vaccine Administration (SIRVA)

Respondent. *

* ************************* Edward Kraus, Chicago, Illinois, for Petitioner.

Ilene Albala, U.S. Department of Justice, Washington, D.C., for Respondent.

DECISION1 HASTINGS, Special Master.

This is an action seeking an award under the National Vaccine Injury Compensation Program2 on account of an injury suffered by Amanda Biers-Melcher. On October 24, 2016, Respondent filed a report conceding that Petitioner is entitled to compensation in this case.

After discussions between the parties, on March 14, 2017, Respondent filed a “Proffer on Award of Compensation.” Petitioner’s counsel, Edward Kraus, contacted a member of my staff by e-mail, on March 15, 2017, to indicate that Petitioner accepts Respondent’s Proffer as a reasonable measure of the amount of the award in this case.

I have reviewed the file, and based on that review, I conclude that the Respondent’s Proffer appears to be an appropriate one, pursuant to § 300aa-15(b). (I have attached a copy of the Proffer to this decision.) I order that Respondent make a lump sum payment as described below.

– Respondent shall make a total lump sum payment of $90,000.00, in the form of a check payable to Petitioner, representing compensation for all damages that would be available under 42 U.S.C. §300aa-15(a).

Under the statute governing the Program, as well as the “Vaccine Rules” adopted by this court, the special master must now enter a decision endorsing that Proffer, and the clerk must enter judgment, in order to authorize payment of the award. See § 300aa-12(d)(3)(A) and (e)(3); § 300aa-13(a); Vaccine Rules 10(a), 11(a).3

Amanda Biers-Melcher is entitled to an award under the Vaccine Act to provide compensation for her injury. The award shall be in the form of a lump sum payment, as provided above.

In the absence of a timely-filed motion for review of this Decision, the clerk shall enter judgment in accord with this Decision.

IT IS SO ORDERED.

/s/ George L. Hastings, Jr.

George L. Hastings, Jr. Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS )

AMANDA BIERS-MELCHER, )

)

Petitioner, )

) No. 16-742V v. ) Special Master Hastings

) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

) PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

On March 10, 2017, Special Master Hastings issued an Order finding that petitioner’s case was entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (SIRVA). Based upon the evidence of record, respondent proffers that petitioner should be awarded $90,000.00, which represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees. II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $90,000.00, in the form of a check payable to petitioner. Petitioner agrees.

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

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division GLENN A. MACLEOD Senior Trial Counsel Torts Branch, Civil Division /s/ Ilene Albala ILENE ALBALA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-3655

Dated: March 14, 2017

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this Decision on the United States Court of Federal Claims' website. Therefore, this document will be made available to the public unless the Petitioner files, within fourteen days, an objection to the disclosure of any material in the Decision that would constitute, “medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” See 42 U.S.C. § 300aa—12(d)(4)(B); Vaccine Rule 18(b). 2 The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa—10 et seq. (2012). Hereinafter, for ease of citation, all “§” references will be to 42 U.S.C. (2012). I will also sometimes refer to the Act of Congress that created the Program as the “Vaccine Act.” 3 The “Vaccine Rules of the United States Court of Federal Claims” are found in Appendix B of the Rules of the United States Court of Federal Claims. 1 Should petitioner die prior to the 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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