1 

# In the United States Court of Federal Claims

OFFICE OF SPECIAL MA STERS

Filed: December 11, 2015

* * * * * * * * * * * * *

EVANGELINA AVILA

, *

* Special Master Roth

*

Petitioner, * No. 14

- 605 V

*

v. * Damages Decision Based on Proffer;

* DTaP; Shoulder Injury Related to

SECRETARY OF HEALTH * Vaccine Administration [“SIRVA”] ;

AND HUMAN SERVICES, * Arthritis

*

Respondent. *

* * * * * * * * * * * * *

Martin J. Martinez, Nemes, Martinez Law Office, Napa, CA , for petitioner.

Julia W. McInerny, U.S. Dept. of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Roth

, Special Master:

On July 14, 2014

, E vangelina A vila filed a petition for compensation under the National

Vaccine Injury Compensation Program, 42 U.S.C. § 300aa

- 10, et seq

. 2 [the “Vaccine Act” or

“Program”] alleging that she suffered a shoulder injury and arthritis as a result of the

administration of her Fe bruary 21, 2012 DTaP vaccination. Petition at 2

- 3.

On July 2, 2015 , noting respondent’s concession in her Rule 4(c) Report that petitioner is

entitled to compensation in this case, Chief Special Master Dorsey issued a Ruling on

Entitlement. This case was transferred to the und ersigned on October 19, 2015. On Decem ber

10, 2015 , respondent filed a Proffer on award of compensation. The proffer indicates that

petitioner agrees with each aspect of the compensation award.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this

decision on the United States Court of Federal Claims' website, in accordance with the E

- Government Act of 2002,

Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In accordance with Vaccine Rule 18(b), petitioner has

14 days to identify and move to delete medical or other information, the disclosure of which would constitute an

unwarranted invasion of privacy. If, upon review, I a gree that the identified material fits within this definition, I will

delete 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 t he Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2006). Case 1:14-vv-00605-UNJ Document 40 Filed 12/11/15 Page 1 of 22 Pursuant to the terms stated in the attached proffer, I award petitioner a lump sum

payment of $100,000.00 in the form of a chec k 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

Any questions regard ing this Order may be directed to my law clerk, Marc

Langston, at (202) 357

- 6392, or by email at Marc_Langston@ao.uscourts.gov.

IT IS SO ORDERED.

s/Mindy Michaels Roth

Mindy Michaels Roth

Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the

right to seek review. Case 1:14-vv-00605-UNJ Document 40 Filed 12/11/15 Page 2 of 2IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ EVANGELINA AVILA, ) No. 14

- 605V

) ECF

Petitioner, ) Special Master Roth

)

v. )

)

SECRETARY OF HEALTH )

AND HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

Based upon the evidence of record, respondent proffer s that petitioner should be awarded

$ 100,000.00 , which represents all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa

- 15(a). 1 Petitioner agrees.

II. Form of the Award

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

through a lump sum payment of $ 100,000.00 in the form of a check payable to petitioner.

Petitioner agrees.

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

RUPA BHATTACHARYYA

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 medical

e xpenses , future lost earnings, and future pain and suffering

. Case 1:14-vv-00605-UNJ Document 39 Filed 12/10/15 Page 1 of 2 Case 1:14-vv-00605-UNJ Document 40-1 Filed 12/11/15 Page 1 of 22 VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

MICHAEL P. MILMOE

Senior Trial Counsel

Torts Branch, Civil Division

/s/ Julia W. McInerny

JULIA W. MCINERNY

Senior Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044

- 0146

DATED: December 10 , 2015 (202) 353

- 3919 Case 1:14-vv-00605-UNJ Document 39 Filed 12/10/15 Page 2 of 2 Case 1:14-vv-00605-UNJ Document 40-1 Filed 12/11/15 Page 2 of 2