Kovalcik v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-991V
Filed: October 6, 2014
Not for Publication
*************************************
KATHY KOVALCIK, *
*
Petitioner, *
* Damages decision based on proffer;
v. * influenza (flu) vaccine; shoulder
* injury related to vaccine
SECRETARY OF HEALTH * administration (SIRVA)
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Maximillian J. Muller, Philadelphia, PA, for petitioner.
Lynn E. Ricciardella, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES1
On December 13, 2013, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered a shoulder injury as a
result of the influenza (“flu”) vaccination she received on October 11, 2012. On March 24,
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 October 6, 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 $130,000.00,
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 $130,000.00 made payable to
petitioner, Kathy Kovalcik.
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: October 6, 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
____________________________________
)
KATHY KOVALCIK, )
)
Petitioner, ) No. 13-991V
) Special Master Millman
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items:
Respondent proffers that, based on the evidence of record, Kathy Kovalcik,
petitioner, should be awarded $130,000.00. This amount represents all elements of
compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a)(1);
§15(a)(3)(A); and §15(a)(4). Petitioner agrees.
II. Form of the Award:
The parties recommend that the compensation provided to Kathy Kovalcik should be
made through a lump sum payment as described below, and request that the special
master’s decision and the Court’s judgment award the following:1
A lump sum payment of $130,000.00 in the form of a check payable to petitioner,
Kathy Kovalcik. This amount accounts for all elements of compensation under
42 U.S.C. § 300aa-15(a) to which petitioner would be entitled.
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.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Senior Trial Attorney
Torts Branch, Civil Division
s/ Lynn E. Ricciardella
LYNN E. RICCIARDELLA
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) 616-4356
DATED: October 6, 2014