Francis v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-234V
Filed: January 26, 2018
UNPUBLISHED
MARIE FRANCIS,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Tetanus Diphtheria acellular
Pertussis (Tdap) Vaccine; Shoulder
SECRETARY OF HEALTH AND Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On February 17, 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 resulting from a
Diphtheria, Tetanus, and Pertussis (“DTaP”) vaccination received on September 21,
2015.. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On August 18, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On
January 25, 2018, respondent filed a proffer on award of compensation (“Proffer”)
indicating petitioner should be awarded $91,202.54. Proffer at 1. In the Proffer,
respondent represented that petitioner agrees with the proffered award. Based on the
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
2National 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).
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 $91,202.54 in the form of a check payable to
petitioner, Marie Francis. 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
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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
MARIE FRANCIS, )
)
Petitioner, )
) No. 17-234V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
In her August 18, 2017 decision, the Chief Special Master found that a preponderance of the
medical evidence indicates that petitioner suffered a shoulder injury related to vaccine
administration (“SIRVA”), which was causally related to the flu vaccination she received on
September 21, 2015. The parties have now addressed the amount of compensation to be
awarded in this case.
I. Compensation
Based upon the evidence of record, respondent proffers that a lump sum of $91,202.54
should be awarded petitioner. This lump sum amount 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, the parties recommend that the
compensation provided should be made in the form of a check for $ 91,202.54 payable to
petitioner.
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Should petitioner die prior to entry of judgment, respondent would oppose any award for future
medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the
right to move the Court for appropriate relief.
Respectfully submitted,
CHAD A. READLER
Acting 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/ Douglas Ross
DOUGLAS ROSS
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Ben Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-3667
Dated: January 25, 2018
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