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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1420V
Filed: May 3, 2017
UNPUBLISHED
****************************
RANDALL FONDOW, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (“Flu”) Vaccine; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
****************************
Amber Diane Wilson, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On October 27, 2016, Randall Fondow (“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 as a result of receiving
an influenza (“flu”) vaccine on October 20, 2015, he suffered a left shoulder injury.
Petition at 1-3. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On March 22, 2017, a ruling on entitlement was issued, finding petitioner entitled
to compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”).
On May 2, 2017, respondent filed a proffer on award of compensation (“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Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
indicating petitioner should be awarded $102,882.81. 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.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $102,882.81 in the form of a check payable to
petitioner, Randall Fondow. 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
RANDALL FONDOW, )
)
Petitioner, ) No. 16-1420V
) Chief Special Master
v. ) Nora Beth Dorsey
) ECF
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On March 22, 2017, the Chief Special Master issued a Ruling on Entitlement finding that
petitioner was entitled to vaccine compensation for his Shoulder Injury Related to Vaccine
Administration (“SIRVA”). Respondent proffers that based on the evidence of record, petitioner
should be awarded $102,882.81. 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 Chief Special Master’s
decision and the Court’s judgment award the following: 1
A lump sum payment of $102,882.81, in the form of a check payable to petitioner,
Randall Fondow. This amount accounts for all elements of compensation under
42 U.S.C. § 300aa-15(a) to which petitioner would be entitled.
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, future lost earnings, and future pain and suffering.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
LYNN E. RICCIARDELLA
Senior Trial Attorney
Torts Branch, Civil Division
s/Linda S. Renzi
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
Ben Franklin Station, P.O. Box 146
Washington, D.C. 20044-0146
Tel.: (202) 616-4133
DATE: May 2, 2017
2