# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-1379V
Filed: April 27, 2016

UNP UBLISHED

* * * * * * * * * * * * * * * * * * * * * * * * * * * *
BARBARA J. SMITH, *

* Petitioner, * Damages Decision Based on Proffer; * Tetanus-Diphtheria-Acellular-Pertussis * Vaccine (“TDaP”); Shoulder Injury

SECRETARY OF HEALTH * Rela ted to Vaccine Administration
AND HUMAN SERVICES, * (“SIRVA”); Special Processing Unit * (“SPU”) Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Laurie C. TeWinkle, Law Offices of L.C. TeWinkle, LLC, Erie, PA, for petitioner. Gordon Elliot Shemin, U.S. Department of Justice, Washingt on, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorse y , Chief Special Master:

On November 16, 2015, Barbara J. Sm ith (“petitioner”) filed a petition for compensation under the National Vaccine Inju ry Compensation Program, 42 U.S.C. §300aa-10, et seq.

, 2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury as a result of a tetanus-dipht heria-acellular pertussis (“TDaP”) vaccine she received on October 10, 2014. Petition at 1- 2. The case was assigned to the Special Processing Unit of the Offi ce of Special Masters.

On April 25, 2016, a ruling on entitlement was issued, finding petitioner entitled to compensation. On April 27, 2016, respondent filed a proffer on award of compensation (“Proffer”) stating that petiti oner should be awarded $85,000.00. Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the proffered award. Based

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned 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). v.2 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 stat ed in the attached Proffer, the undersigned awards petitioner a lump sum payment of $85,000. 00, in the form of a check payable to petitioner, Barbara J. Smith. This amount represents compensation for all damages

that would be availabl e under § 300aa-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 c an be expedited by the parties’ joint filing of notice
renouncing the right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

BARBARA J. SMITH, )

)

Petitioner, ) No. 15

- 1379V

) Chief Special Master Dorsey

v. ) ECF

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)
Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

For purposes of this proffer, the term “vaccine

- related” is as described in Respondent’s

Rule 4(c) Report, f iled on April 25 , 2016 , conceding entitlement in this case. Based upon the

evidence of record, respondent proffers that p e tition er should be awarded $85,000.00, which

represents all elements of competition to which petitioner wou ld be entitled under 42 U.S.C.

§ 300aa

- 15(a) for her vaccine

- related injury. Petitioner agrees.

II. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made

t hro ugh a lump sum payment of $85,000.00 in the form of a check payable t o petitioner. 1

Petitioner agrees.

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

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 suff ering, and future lost wages.Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

Director

Torts Branch, Civil Division

VINCENT J. MATANOSKI
Deputy Director

Torts Branch, Civil Division

LI SA A. WATTS

Senior Trial Attorney

Torts Branch, Civil Division

/s/ Gordon Shemin

G ORDON SHEMIN

Trial Attorney

Torts Branch, Civil Division

U. S. Department of Justice

P.O. Box l46
Benjamin Franklin Station
Washington, D.C. 20044

- 0146

(202) 616

- 4208

Dated: April 2 7 , 2016.