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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0877V
Filed: September 29, 2016
UNPUBLISHED
****************************
MARION KITTY, *
*
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. *
*
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Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Darry R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On July 25, 2016, Marion Kitty (“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 she suffered an injury to her right
shoulder as a result of an influenza (“flu”) vaccine she received on October 2, 2015.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On August 26, 2016, a ruling on entitlement was issued, finding petitioner entitled
to compensation for SIRVA. On September 29, 2016, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $100,450.87.
Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
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 $100,450.87, in the form of a check payable to
petitioner, Marion Kitty. 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
___________________________________
)
MARION KITTY, )
)
Petitioner, ) No. 16-877V ECF
)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On July 25, 2016, Marion Kitty (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34, as amended. She alleges that, as a result of receiving the influenza (“flu”) vaccine on
October 2, 2015, she suffered a right shoulder injury. Petition at 1-3.
On August 26, 2016, respondent filed her Vaccine Rule 4(c) report, conceding causation-
in-fact for petitioner’s shoulder injury related to vaccine administration (“SIRVA”). On that
same day, the Chief Special Master issued a ruling on entitlement, finding that petitioner was
entitled to compensation for SIRVA.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$100,450.87, which represents all elements of compensation to which petitioner would be
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to
discuss after the Damages Decision is issued.
entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
III. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $100,450.87, in the form of a check payable to petitioner. 2
Petitioner agrees.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
/s/Darryl R. Wishard
DARRYL R. WISHARD
Senior Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46, Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct dial: (202) 616-4357
Dated: September 29, 2016 Fax: (202) 616-4310
2
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.
2