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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 20, 2019
************************
MICHAEL RAY, * UNPUBLISHED
*
Petitioner, * Case No. 16-1388V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Damages Award; Proffer; Tetanus Vaccine;
AND HUMAN SERVICES, * Shoulder Injury Related to Vaccine
* Administration (SIRVA).
Respondent. *
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Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On October 24, 2016, Michael Ray (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“the Program”).2 Petitioner alleged that as
a result of a tetanus vaccine administered on January 6, 2016, petitioner suffered a shoulder
injury related to vaccine administration (“SIRVA”). Petition at 1. On December 17, 2018, the
undersigned issued a decision finding that petitioner was entitled to compensation.
On November 20, 2019, respondent filed a Proffer on Award of Compensation
(“Proffer”). In the Proffer, respondent represented that petitioner agrees with the proffered
award. Proffer at 1. 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 Decision contains a reasoned explanation for the action in this case, the
undersigned is 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). 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. § 300aa.
1
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner:
(1) A lump sum payment of $127,504.46, in the form of a check made payable to
petitioner. The total amount includes $125,000.00 for pain and suffering, and
past unreimbursed expenses totaling $2,504.46.
Proffer at 1.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT herewith.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 is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2
THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MICHAEL RAY,
Petitioner,
v. No. 16-1388V
Special Master Nora Beth Dorsey
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On December 17, 2018, the Court entered a Ruling on Entitlement, finding petitioner
entitled to compensation. Respondent now proffers that petitioner receive an award of a lump
sum of $127,504.46 in the form of a check payable to petitioner.1 This amount represents
compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which
petitioner is entitled.2
Petitioner agrees with the proffered award of $127,504.46.3
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
1
The total amount includes $125,000.00 for pain and suffering, and past unreimbursed expenses
totaling $2,504.46.
2
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 pain and suffering, and future lost wages.
3
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).
1
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
s/ RYAN D. PYLES
RYAN D. PYLES
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-9847
Dated: November 20, 2019
2