United States Court of Federal Claims, 2019

Mozer v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided February 6, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 17-2015V Filed: December 19, 2018 UNPUBLISHED

ELIZABETH MOZER,

Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder SECRETARY OF HEALTH AND Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA)

Respondent.

Shealene Priscilla Wasserman, Muller Brazil, LLP, Dresher, PA, for petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On December 21, 2017, 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 left shoulder injuries caused in fact by the influenza vaccination she received on October 10, 2015. Petition at ¶¶ 2, 23. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 20, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation for her SIRVA. On December 19, 2018, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $118,067.62, representing compensation in the amount of $110,000.00 for pain and suffering, compensation in the amount of $3,265.52 for past out-of-pocket medical expenses, and compensation in the amount of $4,802.10 for past lost wages. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Id. at 1-2. 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 $118,067.62, representing compensation in the amount of $110,000.00 for pain and suffering, compensation in the amount of $3,265.52 for actual unreimbursable expenses, and compensation in the amount of $4,802.10 for actual lost wages, in the form of a check payable to petitioner, Elizabeth Mozer. This amount represents compensation for all damages that would be available under § 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

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.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

_________________________________________

) ELIZABETH MOZER, )

)

Petitioner, )

) No. 17-2015V v. ) Chief Special Master Dorsey

) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

)

Respondent. )

) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

On November 19, 2018, respondent conceded that entitlement to compensation was appropriate under the terms of the Vaccine Act. On November 20, 2018, Chief Special Master Dorsey issued a Ruling on Entitlement, finding that petitioner 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 $118,067.62. The award is comprised of the following: $110,000.00 for pain and suffering; $3,265.52 for past out-of-pocket medical expenses; and $4,802.10 for past wage loss. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).

II. Form of the Award

The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $118,067.62, in the form of a check payable to petitioner. 1 Petitioner agrees.

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

Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Claudia B. Gangi CLAUDIA B. GANGI Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4138 Email: [email protected] Dated: December 19, 2018

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the internet. 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. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required 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). 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). 1 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 pain and suffering.

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