Nolan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-609V Filed: December 21, 2016

UNPUBLISHED

**************************** KATHLEEN NOLAN, *

*

Petitioner, * Damages Decision Based on Proffer; v. * Influenza (“Flu”); Shoulder Injury

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

*

Respondent. *

*

**************************** John DeFazio, Viola Cummings and Lindsay, LLP, Niagara Falls, NY, for petitioner. Gordon Shemin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On May 24, 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 September 16, 2013 influenza (“flu”) vaccine. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 15, 2016, a ruling on entitlement was issued, finding petitioner entitled to compensation for a SIRVA. On December 20, 2016, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $120,416.00. 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 $120,416.00 in the form of a check payable to petitioner, Kathleen Nolan. 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

____________________________________

)

KATHLEEN NOLAN, )

)

Petitioner, ) No. 16-609V

) Chief Special Master Dorsey v. ) ECF

)

SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation

For purposes of this proffer, the term “vaccine-related” is as described in Respondent’s Rule 4(c) Report, filed on August 11, 2016, conceding entitlement in this case. Based upon the evidence of record, respondent proffers that petitioner should be awarded $120,416.00. This represents all elements of competition to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a) for her vaccine-related injury. 1 Petitioner agrees.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made through a lump sum payment described below, and request that the Special Master’s decision and the Court’s judgment award the following:

A lump sum of $120,416.00 in the form of a check payable to petitioner, Kathleen Nolan. This amounts 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 ANN D. MARTIN Senior Trial Attorney 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: December 20, 2016 Fax: (202) 353-2988