Menser v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-455V
Filed: August 26, 2014
Not for Publication
*************************************
ERIN MENSER, *
*
Petitioner, *
* Damages decision based on proffer;
v. * influenza (flu) vaccine; shoulder
* injury related to vaccine
SECRETARY OF HEALTH * administration (SIRVA)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Maximillian J. Muller, Philadelphia, PA, for petitioner.
Alexis B. Babcock, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES1
On May 27, 2014, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered a left shoulder injury as a result
of the influenza (“flu”) vaccination she received on August 30, 2013. On August 22, 2014,
respondent filed her Rule 4(c) Report, conceding that petitioner suffered from a shoulder injury
related to vaccine administration (“SIRVA”) and recommending compensation.
1
Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this 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.
1
On August 26, 2014, respondent filed Respondent’s Proffer on Award of Compensation.
The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole,
the undersigned 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 a lump sum payment of $80,000.00,
representing all elements of compensation to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a). The award shall be in the form of a check for $80,000.00 made payable to
petitioner.
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: August 26, 2014 /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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
ERIN MENSER, )
)
Petitioner, )
) No. 14-455
v. ) Special Master Millman
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER OF DAMAGES
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$80,000.00, which represents all elements of compensation to which petitioner would be entitled
under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees with this amount.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $80,000.00 in the form of a check payable to petitioner.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
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 lost earnings, and future pain and suffering.
1
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
ALTHEA W. DAVIS
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Alexis B. Babcock
ALEXIS B. BABCOCK
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-7678
Dated: August 26, 2014
2