Keller v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-188V
Filed: June 20, 2016
Unpublished
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SUSAN KELLER, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (“Flu”) Vaccine; Shoulder
* Injury Related to Vaccine
SECRETARY OF HEALTH * Administration (“SIRVA”); Special
AND HUMAN SERVICES, * Processing Unit (“SPU”)
*
Respondent. *
*
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Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On February 8, 2016, Susan Keller (“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 alleged that as a result of receiving an influenza
(“flu”) vaccine on November 17, 2014, she suffered a shoulder injury related to vaccine
administration (“SIRVA”). The case was assigned to the Special Processing Unit
(“SPU”) of the Office of Special Masters.
On May 20, 2016, the undersigned issued a ruling on entitlement, finding
petitioner entitled to compensation for SIRVA. On June 17, 2016, respondent filed a
proffer on award of compensation (“Proffer”) indicating petitioner should be awarded
$125,000.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
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 $125,000.00 in the form of a check payable to
petitioner, Susan Keller. 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
SUSAN KELLER, )
)
Petitioner, )
v. ) No. 16-188V
) Chief Special Master Dorsey
SECRETARY OF HEALTH AND HUMAN ) ECF
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
$125,000.00. This amount represents all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a)(1); 15(a)(3)(A); and 15(a)(4). 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 lump sum payment of $125,000.00 in the form of a check payable to petitioner,
Susan Keller. 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.
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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.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Senior Trial Attorney
Torts Branch, Civil Division
s/Traci R. Patton
TRACI R. PATTON
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
Ben Franklin Station, P.O. Box 146
Washington, D.C. 20044-0146
Tel.: (202) 353-1589
DATE: June 17, 2016
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