In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-736V
Filed: February 13, 2015
Not for Publication
*************************************
BENA TOMLINSON, *
*
Petitioner, *
* Damages decision based on proffer;
v. * influenza (flu) vaccine; shoulder
* injury related to vaccine
SECRETARY OF HEALTH * administration (SIRVA)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Ronald C. Homer, Boston, MA, for petitioner.
Michael P. Milmoe, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES1
On September 25, 2013, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2006), alleging that she suffered an injection-related
shoulder injury as a result of the influenza (“flu”) vaccination she received on October 6, 2010.
On February 10, 2014, respondent filed her Rule 4(c) Report, conceding that petitioner suffered
from a shoulder injury related to vaccine administration (“SIRVA”) and recommending
compensation.
1
Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this decision on the United States Court of Federal Claims's website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document=s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
1
On February 13, 2015, respondent filed Respondent’s Proffer on Award of
Compensation. The undersigned finds the terms of the proffer to be reasonable. Based on the
record as a whole, the undersigned finds that petitioner is entitled to the award as stated in the
proffer. Pursuant to the terms stated in the attached proffer, the court awards a lump sum
payment of $170,000.00, representing all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a). The award shall be in the form of a check for
$170,000.00 made payable to petitioner, Bena Tomlinson.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: February 13, 2015 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
BENA TOMLINSON, )
)
Petitioner, ) No. 13-736V
) Special Master Millman
v. ) ECF
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
For purposes of this Proffer, the term “vaccine-related” is described in Respondent’s Rule
4(c) Report, filed on February 10, 2014, conceding entitlement in this case. Respondent proffers
that, based on the evidence of record, petitioner should be awarded $170,000.00. This amount
represents all elements of compensation to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a)(1); 15(a)(3)(A); and 15(a)(4). Petitioner agrees.
II. Form of the Award
The parties recommend 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: 1
A. A lump sum payment of $170,000.00 in the form of a check payable to petitioner, Bena
Tomlinson. This amount accounts for all elements of compensation under 42 U.S.C.
§ 300aa-15(a) to which petitioner would be entitled.
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 suffering, and
future lost wages.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOYCE R. BRANDA
Acting 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
s/ Michael P. Milmoe
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-4125
Fax: (202) 616-4310
Dated: February 13, 2015