Frye v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-966V
Filed: March 31, 2017
UNPUBLISHED
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TAMARA FRYE, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (“Flu”); Shoulder Injury
* Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”);
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
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Franklin Caldwell, Maglio, Christopher & Toale, FL, for petitioner.
Camille Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On August 9, 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 received an influenza (“flu”) vaccine in her left arm on
November 25, 2015 and thereafter suffered a shoulder injury related to vaccine
administration (“SIRVA”). Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On December 7, 2016, a ruling on entitlement was issued, finding petitioner
entitled to compensation for a SIRVA. On March 31, 2017, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $101,686.29.
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.
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $101,686.29 in the form of a check payable to
petitioner, Tamara Frye. 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
TAMARA FRYE,
Petitioner,
v. No. 16-966V
Chief Special Master Nora Beth Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On December 6, 2016, the Chief Special Master issued a Ruling on Entitlement finding
petitioner entitled to compensation. Respondent now proffers that petitioner receive an award of
a lump sum of $101,686.29 in the form of a check payable to petitioner. This amount represents
compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which
petitioner is entitled. 1 This proffer does not address final attorneys’ fees and litigation costs.
Petitioner is additionally entitled to reasonable attorneys’ fees and litigation costs, to be
determined at a later date upon petitioner submitting substantiating documentation.
Petitioner agrees with the proffered award of $101,686.29 as representing all elements of
compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
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.
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
s/Camille M. Collett
CAMILLE M. COLLETT
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 616-4098
Dated: March 31, 2017
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