Capra v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-129V
UNPUBLISHED
KENNETH CAPRA, Chief Special Master Corcoran
Petitioner, Filed: February 5, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On January 26, 2018, Kenneth Capra 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) following an influenza (“flu”) vaccination on October 29, 2016.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On July 16, 2019, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for a SIRVA. On February 4, 2020, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $67,618.15
(comprised of $67,500.00 for pain and suffering and $118.15 for unreimbursed out-of-
pocket medical expenses). Proffer at 1. In the Proffer, Respondent represented that
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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).
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 Petitioner a lump
sum payment of $67,618.15 (comprised of $67,500.00 for pain and suffering and
$118.15 for unreimbursed out-of-pocket medical expenses) in the form of a check
payable to Petitioner. 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
KENNETH CAPRA,
Petitioner,
No. 18-129V
v.
Chief Special Master Corcoran (SPU)
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On July 12, 2019, respondent filed a Rule 4(c) Report conceding that petitioner is entitled
to vaccine compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”)
injury suffered following receipt of an influenza vaccination on October 29, 2016. On July 16,
2019, Ruling on Entitlement, adopting respondent’s recommendation, was issued.
Based upon the evidence of record, respondent proffers that petitioner 1 should be
awarded $67,618.15. This is comprised of pain and suffering ($67,500.00) and past
unreimbursed out-of-pocket medical expenses ($118.15), and represents all elements of
compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 2 Petitioner
agrees.
1
Petitioner is a competent adult, therefore evidence of guardianship is not required in this case.
2
Should Petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through:
a lump sum of $67,618.15 in the form of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a).
Petitioner agrees.
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
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s/ Adriana Teitel
ADRIANA TEITEL
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-3677
Dated: February 4, 2020