# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

MICHELLE GUTIERREZ, *

* No. 12

- 485V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: May1 , 2015

*

SECRETARY OF HEALTH * Damages; decision based on proffer;

AND HUMAN SERVICES, * human papillomavirus (“HPV”) ;

* vasovagal syncope ; skull fracture;

Respondent. * post

- concussion syndrome.

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

Alfonso Melendez

, Alfonso L. Melendez, P.C.

, El Paso

, TX , for Petitioner;

Claudia Gangi , U.S. Dep ’ t of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION AWARDING DAMAGES 1



### On August 2, 2012

, Raul Gutierrez and Martha G il filed a petition on behalf

of t he i r minor daughter, Michelle Gutierrez 2



### , seeking compensation under the

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

– 10 through

34 (20 12 ) , alleging that the human papillomavirus (“HPV”) vaccination caused

Michelle Gutierrez to suffer vasovagal syncope, a skull fracture, and post

concussion syndrome secondary to the vaccination

.

On April 29 , 2015 , respondent filed a Proffer on Award of Compensation, to

which petitioner agrees. Based upon the rec ord as a whole, the special master

1 The E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),

the parties have 14 days to file a motion proposing redaction of medical in formation or other

information described in 42 U.S.C. § 300aa

- 12(d)(4). Any redactions ordered by the special

master will appear in the document posted on the website.

2 This case was recaption ed on April 17, 2015, due to Michelle Gutierrez no longer being

a minor having turn 18 years old on M arch 11, 2015.2



### finds the proffer reasonable and that petitioner is entitled to an award as stated in

the Proffer. Pursuant to the attached Proffer, the court awards petitioner:

A. A lump sum payment of $ 60,000.00 , representing compensati on for

actual and projected pain and suffering , in the form of a check

payable to petitioner

, Michelle Gutierrez

.

B. A lump sum payment of $10,998.60, representing compensation for

satisfaction of the Superior HealthPlan lien, pa yable jointly to

petitioner and:

Superior HealthPlan

5615 High Point Drive, Suite 100

Attn: Case Management Department

Irving, TX 75038

Petitioner agrees to endorse this payment to the Superior HealthPlan.

In the absence of a motion for review filed pursuant to RCFC, Appendix B,

the clerk is directed to enter judgment in case 12

- 485V according to this decision

and the attached proffer. 3



### Any questions may be directed to my law clerk, Mary Holmes, at (202) 357

-

63 60

.

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

3 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each

party filing a notice renouncing the right to seek review by a United States Court of Feder al

Claims judge.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

_______________________________________ )

MICHELLE GUTIERREZ

, )

)

Petitioner, )

)

v. ) No. 12

- 485V

) Special Master Moran

SECRETARY OF HEALTH AND HUMAN )

SERVICES, )

)

Respondent. )

)

RESPONDENT'S PROFFER ON DAMAGES

Respondent submits the following recommendations regarding items of compensation to

be awarded to petitioner under the Vaccine Act.

I. Items of Compensation

A. Future Medical Care Expenses

Respondent proffers that based on the evidence of record, Michelle Gutierrez

(“ petitioner ”) is not entitled to an award for future medical care expenses as provided under 42

U.S.C. § 300aa

- 15(a)(1)(A). Petitione r agree s

.

B. Lost Earnings

Respondent proffers that based upon the evidence of record, petitioner has not and is not

likely to suffer a loss of earnings as a result of her vaccine

- related injury as provided under 42

U.S.C. § 300aa

- 15(a)(3)( B ). Petitioner ag ree s

.

C. Pain and Suffering

Respondent proffers that the Court should award petitioner a lump sum of $ 60 ,000.00 for

her actual and projected pain and suffering. This amount reflects that the award for projected

1 Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 1 of 4pain and suffering has been reduced to net pres ent value. See § 300aa

- 15(a)(4). Petitioner

agree s

.

D. Past Unreimbursable Expenses

Respondent proffers that based upon the evidence of record, petitioner did not incur any

past unreimbursable expenses related to her vaccine

- related injury. Petitioner agre e s

.

E. Medicaid Lien

Respondent proffers that petitioner should be awarded funds to satisfy the Superior

HealthPlan lien in the amount of $ 10,998.60

, which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action the Superior Health Plan may have

against any individual as a result of any Medicaid payments the Superior HealthPlan has made

to or on behalf of Michelle Gutierrez from the date of her eligibility for benefits through the

date of j udgment in this case as a result of her vaccine

- related injury suffered on or about

August 6, 2009 , under Title XIX of the Social Security Act.

F. Attorney’s Fees and Costs

This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to

reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing

substantiating documentation.

II. Form of the Award

A. The parties recomme nd that the compensation provided to petitioner should be

made through a lump sum payment as described below and request that the Special Master’s

decision and the Court’s judgment award the following : a lump sum payment of $60,000.00

2 Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 2 of 4(representing compen sation for actual and projected pain and suffering), in the form of a check

payable to petitioner. 1

B. A lump sum payment of $ 10,998.60

, representing compensation for satisfaction of

the Superior Health Plan lien, payable jointly to petitioner and

Superior HealthPlan

5615 High Point Drive, Suite 100

Attn: Case Management Department

Irving, TX 75038

Petitioner agree s to endorse this payment to the Superior Health Plan

.

III. Summary of Recommended Payments Following Judgment

A. Lump Sum paid to p etitioner: $ 60,000.00

B. Lump Sum paid jointly to petitioner and Superior HealthPlan: $1 0,998.60

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

LINDA S. RENZI

Senior Trial Counsel

Torts Branch, Civil Division

1 Should Michelle Gutierrez die prior to entry of judgment, respondent would oppose any award

for future medical expenses , future lost earnings, and future pain and suffering, and the parties

reserve the right to move the Court for appropriate relief.

3 Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 3 of 4/s/ Claudia B. Gangi

CLAUD IA B. GANGI

Senior Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146

Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Tel.: (202) 616

- 4138

Dated: April 2 9 , 2015

4 Case 1:12-vv-00485-UNJ Document 66 Filed 04/29/15 Page 4 of 4