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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0003V
Filed: May 25, 2017
UNPUBLISHED
****************************
PHYLLIS KOSTURA, *
*
Petitioner, *
* Damages Decision Based on Proffer;
v. * Influenza and Tetanus Vaccinations;
* Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH * Administration (“SIRVA”);
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
****************************
Franklin John Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On January 4, 2016, Phyllis Kostura (“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”). Petitioner alleges that she
suffered injuries from the influenza and tetanus vaccinations she received in her left arm
on January 15, 2015. Petition at ¶¶ 1-2, 5. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On April 5, 2016, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation. (ECF No. 13). On May 24, 2017, respondent filed a
proffer on award of compensation (“Proffer”) indicating petitioner should be awarded
$90,771.00. (ECF No. 41). In the Proffer, respondent represented that petitioner
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
agrees with the proffered award. Id. 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 $90,771.00 in the form of a check payable to
petitioner, Phyllis Kostura. 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
*************************************
PHYLLIS KOSTURA, *
*
Petitioner, * No. 16-003V
* CHIEF SPECIAL MASTER
v. * NORA BETH DORSEY
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*************************************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
The Court issued a Ruling on Entitlement on April 5, 2016. Based upon the evidence of
record, respondent proffers that petitioner should be awarded $90,771.00, 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. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment of $90,771.00, in the form of a check payable to petitioner. Petitioner agrees.
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/ DEBRA A. FILTEAU BEGLEY
DEBRA A. FILTEAU BEGLEY
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) 616-4181
Dated: May 24, 2017
2