Bundrick v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: October 16, 2015)
* * * * * * * * * * * * * * * UNPUBLISHED
DOROTHY BUNDRICK, *
* No. 15-836V
Petitioner, *
*
v. * Chief Special Master Dorsey
* Decision on Proffer; Damages;
SECRETARY OF HEALTH * Influenza Vaccine; Adhesive Capsulitis;
AND HUMAN SERVICES, * SIRVA
*
Respondent. *
*
* * * * * * * * * * * * * * *
Lawrence R. Cohan, Anapol, Schwartz, et al., Philadelphia, PA, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On August 6, 2015, Dorothy Bundrick (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-1 to -34
(2012).2 Petitioner alleged that as a result of receiving an influenza vaccine on September 16,
2013, she suffered adhesive capsulitis. See Petition at 1.
On September 29, 2015, respondent’s counsel filed a report pursuant to Vaccine Rule
4(c), in which respondent recommended that compensation be awarded to petitioner. See
Respondent’s Rule 4 Report at 1, 3. Specifically, respondent concluded, based on a review of
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, 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)). As provided by
Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
the petition and the supporting documentation, that petitioner suffered a shoulder injury as a
result of an influenza vaccination. Id.
On October 16, 2015, respondent filed a Proffer on Award of Compensation (“Proffer”).
In the Proffer, respondent represented that petitioner agrees with the 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 (Appendix A), the undersigned awards
petitioner:
A lump sum of $120,000.00, in the form of a check payable to petitioner, Dorothy
Bundrick. This amount accounts for all elements of compensation under 42 U.S.C. §
300aa-15(a) to which petitioner would be entitled.
Proffer ¶ III.
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
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
Case 1:15-vv-00836-UNJ Document 10 Filed 10/16/15 Page 1 of 2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
___________________________________
)
DOROTHY BUNDRICK, )
)
Petitioner, ) No. 15-836V ECF
)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On August 6, 2015, Dorothy Bundrick (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986 (the “Vaccine Act”), as amended. 42
U.S.C. §§ 300aa-1 et seq. Petitioner alleges that, as a result of receiving the influenza (“flu”)
vaccine on September 16, 2013, she suffered from a shoulder injury related to vaccine
administration (“SIRVA”) in her left shoulder and arm. Petitioner alleges a theory based on
causation-in-fact.
On September 29, 2015, respondent filed her Vaccine Rule 4(c) report, conceding
causation-in-fact for petitioner’s SIRVA. On September 30, 2015, the Chief Special Master
issued a ruling on entitlement, finding that petitioner was entitled to compensation for a SIRVA
caused by the flu vaccine.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
1
This Proffer does not include attorneys’ fees and costs, which the parties intend to
discuss after the Damages Decision is issued.
Case 1:15-vv-00836-UNJ Document 10 Filed 10/16/15 Page 2 of 2
$120,000.00, which represents all elements of compensation to which petitioner would be
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 $120,000.00, in the form of a check payable to petitioner. 2
Petitioner agrees.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
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: October 16, 2015 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