# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 6

- 185 V

Filed: December 30 , 2019

UNPUBLISHED

CHRISTIE KIRBY

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Special Master Horner

Damages Decision Based on Proffer;

Influenza (“flu”) vaccine; Radial

Nerve Injury

Richard Gage, Richard Gage P.C.

, Cheyenne, WY, for petitioner.

Mallori Browne Openchowski , U.S. Department of Justice, Washington, DC, for

respondent.

DECISION AWARDING DAMAGES 1

On February 8, 2016

, p etitioner 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 s he suffered from right arm pain as a result from

her receipt of influenza (“ flu”) vaccine on October 8, 2013

. ( Pet .) The case was

re assigned to me on June 6, 2019

. (ECF No. 46.) On July 22, 2019, an entitlement

hearing was held. Thereafter, on November 1, 2019

, a ruling on entitlement was

issued , finding petitioner entitled to compensation for her radial nerve injury

.

On December 30, 2019

, respondent filed a p roffer on a ward of compensation

(“Proffer”) indicating petitioner should be awarded $ 25,000.00. (ECF No. 67, p. 1.) In

the P roffer, respondent represented that petitioner agrees with the proffered award.

1 I intend to post this decision on the United States Court of Federal Claims' website. 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 informati on, 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. Because this unpublished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 Electroni c Government Services)

.

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

( Id. ) Based on the record as a whole, I find that petitioner is entitled to an award as

stated in the P roffer.

Pursuant to the terms stated in the attached Proffer, I award petitioner

$ 25,000.00

. Th is amount represents compensation for all damages that w ould 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/ Daniel T. Horner

Daniel T. Horner

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.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

CHRISTIE KIRBY

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent. )

)

)

)

)

)

)

)

)

)

)

)

) No. 16

- 185V

Special Master Horner

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Compensation for Vaccine Injury

- Related Items

On November 1, 2019, Special Master Horner issued a Ruling on Entitlement finding that

petitioner was entitled to vaccine compensation for a right radial nerve injury . Based on the

evidence of record, r espondent proffers that petitioner should be award ed $ 25 ,000.00

. 1 This

amount represents all elements of compensation to which petitioner would be entitled under 42

U.S.C. § 300aa

- 15(a)

. 2 Petitioner agrees.

II. Form of the Award

The parties recommend that compensation provided to petitioner should be made through

a lump sum payment of $ 25 ,000.00 , in the form of a check payable to petitioner

. Petitioner

1 The parties have no objection to the amount of the proffered award of damages. However,

respondent reserves his right, pursuant to 42 U.S.C. § 300aa

- 12(e), to seek review of the Special

Master’s November 1 , 2019 entitlement decision

.

2 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 lost earnings

and future pain and suffering.agrees.

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

ALEXIS B. BABCOCK

Assistant Director

Torts Branch, Civil Division

s/ Mallori B. Openchowski

MALLORI B. OPENCHOWSKI

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146, Ben Franklin Station

Washington, DC 20044

- 0146

Tel.: (202) 305

- 0660

DATED: December 30

, 2019