Vessey v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-556V
Filed: March 17, 2015
(Not to be published)
***********************
JOEL VESSEY, *
*
Petitioner, * Decision on Damages; Flu;
v. * SIRVA.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
***********************
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, DC for respondent.
DECISION ON DAMAGES1
Gowen, Special Master:
On June 30, 2014, Joel Vessey (“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”]. The petition alleges that he suffered a shoulder injury
related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”)
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I
intend to post this ruling on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has
14 days to identify and move to delete medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material
fits within this definition, I will delete 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 (2006).
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vaccination on October 24, 2011. Petition at Intro. On September 26, 2014, respondent
filed a Rule 4(c) Report [“Respondent’s Report”], in which she conceded that petitioner is
entitled to compensation under the Program. Respondent’s Report at 2. The undersigned
issued a Ruling on Entitlement on September 26, 2014 finding that petitioner is entitled to
compensation.
On March 16, 2015, respondent filed a Proffer indicating that petitioner has agreed
to an award of compensation in the amount of $80,000. The undersigned’s chambers
contacted petitioner’s counsel on March 17, 2015, and he confirmed petitioner’s agreement
with the proposed compensation amount. Pursuant to the terms in the attached Proffer, the
undersigned awards petitioner the following compensation for all damages that would
be available under 42 U.S.C. § 300aa-15(a):
1. A lump sum payment of $80,000.00 in the form of a check payable to
petitioner, Joel Vessey.
The clerk of the court shall enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JOEL VESSEY, )
)
Petitioner, ) No. 14-556V
) Special Master
v. ) Thomas L. Gowen
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
Respondent proffers that based on the evidence of record, petitioner should be awarded
$80,000.00. 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
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment as described below, and request that the special master’s decision
and the Court’s judgment award the following: 1
A. A lump sum payment of $80,000.00 in the form of a check payable to petitioner, Joel
Vessey. 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.
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 medical
expenses and future pain and suffering.
Respectfully submitted,
BENJAMIN C. MIZER
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
s/Althea Walker Davis
ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-0515
DATED: 13 March 2015
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