Lutes v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-669V
Filed: November 13, 2023
IVONNE LUTES, Special Master Horner
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On January 12, 2021, Ivonne Lutes, “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 left shoulder injuries
related to vaccine administration (“SIRVA”), resulting from the influenza (“flu”) vaccine
she received on October 16, 2019. (ECF No. 1)
On August 11, 2023, a ruling on entitlement was issued, finding petitioner entitled
to compensation for SIRVA. On November 13, 2023, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $76,000.00
for pain and suffering, and $1,469.18 and $4,797.77, representing compensation for
satisfaction of the State of Massachusetts Medical liens. (ECF No. 49, p. 2-3.) 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.
1 Because this document contains a reasoned explanation for the action taken in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic
Government Services). This means the document 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.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
Pursuant to the terms stated in the attached Proffer, I award petitioner
$82,266.95 as follows:
• a lump sum payment of $76,000.00, representing compensation for
petitioner’s pain and suffering, in the form of a check payable to petitioner.
• a lump sum payment of $1,469.18, representing compensation for
satisfaction of a state of Massachusetts Medicaid lien, in the form of a
check payable jointly to petitioner and:
Boston Medical Center HealthNet Plan
529 Main St
Suite 500
Charlestown, MA 02129
ID# B0122353100
• a lump sum payment of $4,797.77, representing compensation for
satisfaction of a state of Massachusetts Medicaid lien, in the form of a
check payable jointly to petitioner and:
The Rawlings Company
Attn: Benjamin A. Rich
PO Box 2000
La Grange, KY 40031
Reference # 123079666
Petitioner has agreed to endorse the checks to the State of Massachusetts for
satisfaction of the Medical liens. (ECF No. 49, p. 3.) These amounts represent
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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
IVONNE LUTES,
No. 21-669V
Petitioner, Special Master Daniel T. Horner
ECF
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
PROFFER ON AWARD OF COMPENSATION
On January 12, 2021, Ivonne Lutes (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, alleging that
she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), as defined in the
Vaccine Injury Table, following administration of an influenza vaccine she received on October
16, 2019. Petition at 1. On April 26, 2023, petitioner filed a Motion for a Ruling on the Record
(“Motion”) arguing that she has established entitlement to compensation for a SIRVA. ECF No.
40. Respondent filed his Response to Petitioner’s Motion on May 22, 2023, recommending that
entitlement to compensation be denied. ECF No. 41. On August 11, 2023, the Court issued a
Ruling on Entitlement, finding that petitioner is entitled to compensation.1 ECF No. 43.
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Respondent has no objection to the amount of the proffered award of damages set forth herein.
Assuming the Court issues a damages decision in conformity with this proffer, respondent
waives his right to seek review of such damages decision. However, respondent reserves his
right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Court’s August 11, 2023
entitlement decision.
I. Compensation for Vaccine Injury-Related Items
A. Pain and Suffering
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a lump sum of $76,000.00 for pain and suffering, in the form of a check payable to petitioner.
Petitioner agrees.
B. Medicaid Liens
Respondent proffers that petitioner should be awarded funds to satisfy the State of
Massachusetts Medicaid liens in the amounts of $1,469.18 and $4,797.77, which represents full
satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of
Massachusetts may have against any individual as a result of any Medicaid payments the State of
Massachusetts has made to or on behalf of petitioner from the date of her eligibility for benefits
through the date of judgment in this case as a result of her alleged vaccine-related injury suffered
on or about October 16, 2019, under Title XIX of the Social Security Act.
The above amounts represent all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
two lump sum payments described below, and request that the Special Master’s decision and the
Court’s judgment award the following: 2
A. A lump sum payment of $76,000.00 in the form of a check payable to petitioner; and
B. A lump sum payment of $1,469.18, representing compensation for satisfaction of the
State of Massachusetts Medicaid lien, in the form of a check payable jointly to
petitioner and:
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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 pain and suffering, and future lost wages.
2
Boston Medical Center HealthNet Plan
529 Main St
Suite 500
Charlestown, MA 02129
ID #: B0122353100
C. A lump sum payment of $4,797.77, representing compensation for satisfaction of the
State of Massachusetts Medicaid lien, in the form of a check payable jointly to
petitioner and:
The Rawlings Company
Attn: Benjamin A. Rich
PO Box 2000
La Grange, KY 40031
Reference #: 123079666
Petitioner agrees to endorse the checks to the State of Massachusetts for satisfaction of
the Medicaid liens.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
LARA A. ENGLUND
Assistant Director
Torts Branch, Civil Division
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/s/ NINA Y. REN
NINA Y. REN
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington D.C. 20044-0146
(202) 305-3781
Nina.Ren@usdoj.gov
DATED: November 13, 2023
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