Shives v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-983V
Filed: January 27, 2015
****************************
VIRGINIA SHIVES, *
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza Vaccine or Flu Vaccine;
* Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH * Administration; SIRVA,
AND HUMAN SERVICES, * Special Processing Unit
*
Respondent. *
*
****************************
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Claudia Gangi, US Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Vowell, Chief Special Master:
On October 14, 2014, Virginia Shives filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she suffered left shoulder and arm
pain caused-in-fact by the influenza vaccine she received on September 20, 2013.
Petition at 1-2, 7. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On December 9, 2014, I issued a ruling on entitlement, finding petitioner entitled
to compensation. On January 27, 2015, respondent filed a proffer on award of
compensation [“Proffer”] indicating petitioner should be awarded $85,000.00 “for actual
and projected pain and suffering.” Proffer at 2. According to respondent’s Proffer,
petitioner agrees to this proposed amount. Id. at 1-2.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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.
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 (2006).
Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $85,000.00 in the form of a check payable to petitioner, Virginia
Shives. 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
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
2
Case 1:14-vv-00983-UNJ Document 19 Filed 01/27/15 Page 1 of 3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_________________________________________
)
VIRGINIA SHIVES, )
)
Petitioner, )
) No. 14-983V
v. ) Chief Special Master Vowell
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 14, 2014, Virginia Shives (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 to 34.
Petitioner alleges that she received an influenza vaccine in her left arm on September 20, 2013,
and subsequently suffered a left shoulder injury secondary to the vaccination. Petition at 1-2.
On December 9, 2014, the Secretary of Health and Human Services (“respondent”) filed a
Vaccine Rule 4(c) Report, conceding that petitioner suffered from a shoulder injury related to
vaccine administration (“SIRVA”), and recommending that the Court award petitioner
compensation. Respondent’s Rule 4(c) Report at 3. Respondent hereby submits the following
proffer regarding the award of compensation.
I. Items of Compensation
A. Future Medical Care Expenses
Respondent proffers that based on the evidence of record, petitioner is not entitled to an
award for projected unreimbursable medical care expenses incurred from the date of judgment as
provided under 42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.
Case 1:14-vv-00983-UNJ Document 19 Filed 01/27/15 Page 2 of 3
B. Lost Earnings
Respondent proffers that based upon the evidence of record, petitioner has not and is not
likely to suffer a loss of earnings as a result of her vaccine-related injury. Accordingly, the Court
should not award lost future earnings as provided under § 300aa-15(a)(3)(A). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that the Court should award petitioner a lump sum of $85,000.00 for
her actual and projected pain and suffering. This amount reflects that the award for projected
pain and suffering has been reduced to net present value. See § 300aa-15(a)(4). Petitioner
agrees.
D. Past Unreimbursable Expenses
Respondent proffers that based upon the evidence of record, petitioner has not incurred
any past unreimbursable expenses related to her vaccine-related injury. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens related to her vaccine-
related injury.
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 $85,000.00 (representing
compensation for actual and projected pain and suffering), in the form of a check payable to
petitioner.
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 pain and
suffering.
Case 1:14-vv-00983-UNJ Document 19 Filed 01/27/15 Page 3 of 3
III. Summary of Recommended Payment Following Judgment
A lump sum payment of $85,000.00, representing compensation for actual and projected pain
and suffering related to the vaccine-related injury, payable to petitioner.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
LINDA S. RENZI
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Claudia B. Gangi
CLAUDIA B. GANGI
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4138
Dated: January 27, 2015