Kovtun v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0296V
Filed: March 11, 2019
UNPUBLISHED
EKATERINA KOVTUN,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Tetanus Diphtheria acellular
Pertussis (Tdap) Vaccine; Shoulder
SECRETARY OF HEALTH AND Injury Related to Vaccine
HUMAN SERVICES, Administration (SIRVA)
Respondent.
Glen Howard Sturtevant, Jr., Rawls Law Group, Richmond, VA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On February 27, 2018, 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 injuries, described as " debilitating
pain, restricted range of motion, and adhesive capsulitis of her left shoulder and arm”
caused-in-fact by the tetanus, diphtheria, and acellular pertussis (“Tdap”) she received
on November 9, 2016. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.
On February 4, 2019, a ruling on entitlement was issued, finding petitioner
entitled to compensation for shoulder injury related to vaccine administration (“SIRVA”).
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required 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).
2National 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).
On March 8, 2019, respondent filed a proffer on award of compensation (“Proffer”)
indicating petitioner should be awarded $57,522.98, representing compensation in the
amount of $57,500.00 for pain and suffering and $22.98 for unreimbursable expenses.
Proffer at 2. In the Proffer, respondent represented that petitioner agrees with the
proffered award. Id. at 1. 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 $57,522.98, representing compensation in the
amount of $57,500.00 for pain and suffering and $22.98 for unreimbursable
expenses, in the form of a check payable to petitioner, Ekaterina Kovtun. This
amount represents 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/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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
EKATERINA KOVTUN, )
) No. 18-296V
Petitioner, ) Chief Special Master Dorsey
) ECF
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On February 2, 2019, respondent filed a Vaccine Rule 4(c) report concluding that
petitioner suffered an injury that is compensable under the National Childhood Vaccine Injury
Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34. Accordingly, on February 2, 2019, the
Chief Special Master issued a Ruling on Entitlement.
Respondent now proffers that, based on the evidence of record, petitioner should be
awarded $57,522.98. This amount represents all elements of compensation to which petitioner
would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Items of Compensation and Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment described below, and request that the Chief Special Master’s
decision and the Court’s judgment award the following: 1
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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.
A. Petitioner’s Damages
A lump sum payment of $57,522.98 (comprised of $57,500.00 for pain and suffering and
$22.98 in unreimbursable expenses) in the form of a check payable to petitioner, Ekaterina
Kovtun.
B. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/ Daniel A. Principato
DANIEL A. PRINCIPATO
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-3662
Fax: (202) 353-2988
Dated: March 8, 2019
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