United States Court of Federal Claims, 2017

Deniston v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided June 14, 2017 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-0782V Filed: January 12, 2017 UNPUBLISHED

**************************** IRENE DENISTON, *

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

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

Respondent. *

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

Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On June 30, 2016, Irene Deniston (“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 right shoulder injuries that were caused-in-fact by an influenza (“flu”) vaccine on October 21, 2014. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 31, 2016, a ruling on entitlement was issued, finding petitioner entitled to compensation for SIRVA. On January 12, 2017, 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. 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, Irene Deniston. 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

) IRENE DENISTON, )

) Petitioner, )

) No. 16-782V v. ) Chief Special Master Dorsey

) 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 $75,000.00, 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

Petitioner is a competent adult. Accordingly, respondent recommends that the compensation provided to petitioner should be made through a lump sum payment of $75,000.00, in the form of a check payable to petitioner. 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 Deputy Director Torts Branch, Civil Division GLENN A. MACLEOD Senior Trial Counsel Torts Branch, Civil Division /s/ Colleen C. Hartley COLLEEN C. HARTLEY 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) 616-3644 Fax: (202) 353-2988

DATED: January 12, 2017

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 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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