Muller-Carillo v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-183V
UNPUBLISHED
DULCE CONCEPCION MULLER- Chief Special Master Corcoran
CARILLO,
Filed: May 15, 2020
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.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On January 31, 2019, Dulce Concepcion Muller-Carillo 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 Shoulder
Injury Related to Vaccine Administration (“SIRVA”) as a result of her August 2, 2017
tetanus diphtheria acellular pertussis (“Tdap”) vaccine. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On February 4, 2020, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On May 15, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $160,000.00
in addition to $2,187.09 funds to satisfy a State of California Medicaid lien. Proffer at 1-
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National 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).
2. In the Proffer, Respondent represented that Petitioner agrees with the proffered
award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award
as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award the following
compensation:
1) A lump sum payment of $160,000.00 in the form of a check payable to
Petitioner.
2) A lump sum payment of $2,187.09, representing compensation for
satisfaction of the State of California Medicaid lien, payable jointly to
Petitioner and to:
Department of Health Care Services
Recovery Branch - MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
DHCS account number: C96318746C-VAC03
Petitioner agrees to endorse this payment to the California Department of Health
Care Services. 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/Brian H. Corcoran
Brian H. Corcoran
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
DULCE CONCEPCION MULLER- )
CARILLO, )
)
Petitioner, ) No. 19-183V
v. ) Chief Special Master Corocran
) SPU
SECRETARY OF HEALTH AND HUMAN ) ECF
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On January 31, 2020, respondent conceded that entitlement to compensation was
appropriate under the terms of the Vaccine Act. Thereafter, on February 4, 2020, Chief Special
Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine
compensation for her shoulder injury related to vaccine administration (“SIRVA”).
I. Compensation for Vaccine Injury-Related Items
Based on the evidence of record, respondent proffers that petitioner should be awarded
$160,000.00. This amount represents all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a), with the exception of the reimbursement of the Medicaid
lien, below. Petitioner agrees.
Respondent further proffers that petitioner should be awarded funds to satisfy a State of
California Medicaid lien in the amount of $2,187.09, which represents full satisfaction of any
right of subrogation, assignment, claim, lien, or cause of action the State of California may have
against any individual as a result of any Medicaid payments that the State of California has made
to or on behalf of Dulce Concepcion Muller-Carillo from the date of her eligibility for benefits
through the date of judgment in this case as a result of her vaccine-related injury suffered on or
about August 2, 2017, under Title XIX of the Social Security Act. Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner be made through
two lump sum payments as described below:
(1) The parties recommend that compensation provided to petitioner should be made
through a lump sum payment of $160,000, in the form of a check payable to
petitioner. 1 Petitioner agrees.
(2) A lump sum payment of $2,187.09, representing compensation for satisfaction of
the State of California Medicaid lien, payable jointly to petitioner and to:
Department of Health Care Services
Recovery Branch - MS 4720
P.O. Box 997421
Sacramento, CA 95899-7421
DHCS account number: C96318746C-VAC03
Petitioner agrees to endorse this payment to the California Department of Health Care Services.
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
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 pain and
suffering.
2
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/ Traci R. Patton
TRACI R. PATTON
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Telephone: (202) 353-1589
Dated: May 15, 2020
3