Anthony Calise, Personal Representative of the Estate of Lisa Calise v. Secretary of Health and Human Services

Case 1:08-vv-00865-UNJ Document 127 Filed 07/03/13 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 08-865V
July 3, 2013
Not for Publication
*****************************
ANTHONY CALISE, personal *
representative of the estate of *
LISA CALISE, deceased, *
*
Petitioner, * Damages Decision Based on Proffer;
* influenza vaccine; neuromyelitis
v. * optica (NMO); death
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*****************************
Ronald C. Homer, New York, NY, for petitioner.
Michael P. Milmoe, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES1
On July 3, 2013, respondent filed a Proffer on Award of Compensation. Based on the
record as a whole, the special master finds that petitioner is entitled to the award as stated in the
Proffer. Pursuant to the terms stated in the attached Proffer, the court awards petitioner a lump
sum payment of $586,793.37 (representing $250,000.00 for pain and suffering, $86,793.37 for
past unreimbursable expenses, and $250,000.00 for the statutory death award). The lump sum of
$586,793.37 represents compensation for all damages that would be available under 42 U.S.C. §
300aa-15(a), and shall be made payable to petitioner.
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this case, the
special master intends to post this unpublished decision on the United States Court of Federal Claims’s website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine
Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade
secrets or commercial or financial information that is privileged and confidential, or medical or similar information
whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed,
petitioner has 14 days to identify and move to redact such information prior to the document=s disclosure. If the
special master, upon review, agrees that the identified material fits within the banned categories listed above, the
special master shall redact such material from public access.
Case 1:08-vv-00865-UNJ Document 127 Filed 07/03/13 Page 2 of 6
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: July 3, 2013 s/Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly,
filing a notice renouncing the right to seek review.
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Case 1:08-vv-00865-UNJ Document 127 Filed 07/03/13 Page 3 of 6
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
***********************
*
ANTHONY CALISE, personal *
representative of the estate of *
LISA CALISE, deceased, *
Petitioner, *
*
v. * No. 08-865V (ECF)
* SPECIAL MASTER
* Laura D. Millman
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
***********************
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On December 4, 2008, Lisa Calise, petitioner, filed a petition for compensation under the
National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the Act”),
42 U.S.C. §§ 300aa-10 to -34. An amended petition was filed on July 16, 2009. Petitioner
alleged that she received an influenza (“flu”) vaccine on December 19, 2005, and that this
vaccination caused her to develop Devic’s Disease, also known as neuromyelitis optica
(“NMO”). See Amended Petition at 1. Both parties retained experts and a hearing was
conducted in Washington, D.C., on June 29, 2010. On March 14, 2011, the special master issued
a decision finding that petitioner was entitled to compensation. While the parties were
attempting to resolve damages, petitioner died on December 7, 2012. Her death was related to
her NMO. On January 28, 2013, petitioner filed letters of administration from the State of North
Carolina indicating that on January 11, 2013, petitioner’s husband, Anthony Calise, became
“fully authorized by the laws of North Carolina to receive and administer all of the assets
belonging to the estate, and these Letters are issued to attest to that authority and to certify that it
Case 1:08-vv-00865-UNJ Document 127 Filed 07/03/13 Page 4 of 6
is now in full force and effect.” See Exhibit 80. Petitioner moved to amend the caption of this
case on January 28, 2013 to reflect that Anthony Calise is the sole named petitioner, in his
capacity as personal representative of the estate of Lisa Calise. The special master granted
petitioner’s motion on January 29, 2013.
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 unreimbusable medical care expenses incurred from the date of judgment as
provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.
B. Lost Past and Future Earnings
Respondent proffers that based upon the evidence of record, Petitioner did not suffer a
loss of earnings as a result of her vaccine injury. Accordingly, Petitioner should not be awarded
lost past or future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A).
Petitioner agrees.
C. Pain and Suffering
Respondent proffers that Petitioner should be awarded a lump sum of $250,000.00 for
Petitioner’s actual pain and suffering as provided under the Vaccine Act, 42 U.S.C. § 300aa-
15(a)(4). Petitioner agrees.
D. Past Unreimburseable Expenses
Respondent proffers that based upon the evidence of record, Petitioner incurred past
unreimbusable expenses in the amount of $86,793.37 related to her vaccine-related injury.
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Case 1:08-vv-00865-UNJ Document 127 Filed 07/03/13 Page 5 of 6
Petitioner agrees.
E. Statutory Death Benefit
Respondent proffers that Petitioner should be awarded $250,000.00 for her vaccine-
related death as provided under the Vaccine Act, § 300aa-15(a)(2). Petitioner agrees.
F. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens related to Petitioner’s
vaccine-related injury.
II. Form of the Award
The parties recommend that the compensation provided to Petitioner should be made
through lump sum payment and request that the special master’s decision and the Court’s
judgment award the following:
A lump sum payment of $586,793.37 representing compensation for all damages that
would be available under 42 U.S.C. § 300aa-15(a), payable to Petitioner.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to Petitioner: $586,793.37
Respectfully submitted,
STUART F. DELERY
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
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Case 1:08-vv-00865-UNJ Document 127 Filed 07/03/13 Page 6 of 6
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Assistant Director
Torts Branch, Civil Division
s/Michael P. Milmoe
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
DATE: July 3, 2013 Tel.: (202) 616-4125
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