Rosenthal v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-253V

Filed: December 15, 2016

UNPUBLISHED

**************************** STEPHANIE ROSENTHAL, *

*

Petitioner, *

* Damages Decision Based on Proffer; v. * Influenza Vaccine (“Flu Vaccine”);

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

*

Respondent. *

*

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

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

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On February 23, 2016, Stephanie Rosenthal (“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”). Petitioner alleges that she suffered left shoulder injuries caused in fact by the influenza vaccination she received on October 21, 2014. Petition at 1, ¶¶ 2, 8. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 15, 2016, the undersigned issued a ruling on entitlement, finding petitioner entitled to compensation. (ECF No. 12). On December 14, 2016, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $75,000.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. 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 $75,000.00 in the form of a check payable to petitioner, Stephanie Rosenthal. 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

____________________________________

)

STEPHANIE ROSENTHAL, )

)

Petitioner, ) No. 16-253V

) 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 July 15, 2016, the Chief Special Master issued a Ruling on Entitlement determining 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 $75,000.00. This amount 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 as described below, and requests that the Chief Special Master’s decision and the Court’s judgment award the following: 1

A. A lump sum payment of $75,000.00 in the form of a check payable to petitioner,

Stephanie Rosenthal. 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 C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Acting Deputy Director Torts Branch, Civil Division ALTHEA WALKER DAVIS Senior Trial Counsel 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: December 14, 2016 Fax: (202) 616-4310