Dean v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-470V
Filed: August 2, 2019
UNPUBLISHED
KELLY DEAN,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Tetanus Diphtheria acellular
HUMAN SERVICES, Pertussis (Tdap) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On March 30, 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 a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a Tetanus Diphtheria acellular Pertussis (“Tdap”)
vaccine administered on December 7, 2017. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On June 7, 2019, a ruling on entitlement was issued, finding petitioner entitled to
compensation for a SIRVA. On July 31, 2019, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioner should be awarded $96,976.78. Proffer at
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 Because this unpublished decision contains a reasoned explanation for the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).
1. In the Proffer, respondent represented that petitioner agrees with the proffered
award. Id. 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 $96,976.78 in the form of a check payable to
petitioner, Kelly Dean. 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KELLY DEAN, )
)
Petitioner, ) No. 18-470V
) Chief Special Master
v. ) Nora Beth Dorsey
) SPU
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
On March 30, 2018, Kelly Dean (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34 (“Vaccine Act” or “Act”), as amended. Respondent conceded petitioner’s entitlement to
compensation in his Rule 4(c) Report filed on June 5, 2019. Based on Respondent’s Rule 4(c)
Report, on June 7, 2019, Chief Special Master Dorsey found petitioner entitled to compensation.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$96,976.78, which represents all elements of compensation to which petitioner would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
1
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $96,976.78 in the form of a check payable to petitioner. 1
Petitioner agrees.
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
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/Althea Walker Davis
ALTHEA WALKER DAVIS
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-0515
DATED: 31 July 2019
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 medical
expenses, future pain and suffering, and future lost wages.
2