Knapp v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1003V
Filed: October 29, 2019
UNPUBLISHED
ERNEST KNAPP,
Special Master Horner
Petitioner,
v. Damages Decision Based on Proffer;
Tdap, Brachial Neuritis
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget McCullough, Esq., Miller Brazil, LLP, Dresher, PA for petitioner.
Voris Johnson, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On July 12, 2018, 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 he suffered from brachial neuritis. Petition at 1. The case
was assigned to Special Master Christian Moran. On April 29, 2019, a ruling on
entitlement was issued, finding petitioner entitled to compensation for his brachial
neuritis. On August 27, 2019, this case was assigned to me.
On October 29, 2019, respondent filed a proffer on award of compensation
(“Proffer”) indicating petitioner should be awarded $60,000, plus satisfaction of a
Medicaid lien in the amount of $2,302.91. Proffer at 1. In the Proffer, respondent
represented that petitioner agrees with the proffered award. Id. Based on the record as
a whole, I find that petitioner is entitled to an award as stated in the Proffer.
1I intend to post this decision on the United States Court of Federal Claims' website. This means the
decision will be available to anyone with access to the internet. 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, I agree that the identified
material fits within this definition, I will redact such material from public access. Because this unpublished
decision contains a reasoned explanation for the action in this case, I am required 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).
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).
Pursuant to the terms stated in the attached Proffer, I award petitioner
$62,302.91 as follows:
• A lump sum payment of $60,000 in the form of a check payable to
petitioner; and
• A lump sum payment of $2,302.91 in the form of a check payable jointly to
petitioner and
Department of Health Care Services
Recovery Branch – MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
Re: DHCS Acct. No. C92244986A-VAC03.
Petitioner agrees to endorse this check over to the Department of Health
Care Services.
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/ Daniel T. Horner
Daniel T. Horner
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
__________________________________________
)
ERNEST KNAPP, )
)
Petitioner, )
) No. 18-1003V (ECF)
v. ) Special Master Horner
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S AMENDED PROFFER ON AWARD OF DAMAGES
On April 26, 2019, respondent, the Secretary of Health and Human Services, filed his
Rule 4(c) Report conceding entitlement to compensation in this matter on the basis that a
preponderance of the evidence establishes a Vaccine Table injury of brachial neuritis following a
Tdap vaccine. On April 29, 2019, the Court entered its Ruling on Entitlement, finding petitioner
Ernest Knapp entitled to Vaccine Act compensation. Respondent now proffers that petitioner
receive a compensation award consisting of a lump sum of $60,000.00 in the form of a check
payable to petitioner, Ernest Knapp, 1 plus satisfaction of a Medicaid lien in the amount of
$2,302.91, in the form of a check made payable jointly to petitioner 2 and:
Department of Health Care Services
Recovery Branch – MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
Re: DHCS Acct. No. C92244986A-VAC03
1
Petitioner is a competent adult. No guardianship is required.
2
Petitioner agrees to endorse this check over to the Department of Health Care Services.
These amounts represent compensation for all elements of compensation under 42 U.S.C. §
300aa-15(a) to which petitioner is entitled. 3
Petitioner agrees with the proffered award of $60,000.00, plus satisfaction of the
Medicaid lien in the amount of $2,302.91. 4
Respectfully submitted,
JOSEPH H. HUNT
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/Voris E. Johnson, Jr.
VORIS E. JOHNSON, JR.
Senior 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) 616-4136
Dated: October 29, 2019
3
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.
4
This proffer does not include any award for attorneys’ fees and costs that may be awarded
pursuant to 42 U.S.C. § 300aa-15(e).
2