In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-951V
Filed: February 18, 2016
Unpublished
****************************
BARBARA LYKINS, *
*
Petitioner, * Damages Decision Based on Proffer;
* Influenza (“Flu”) Vaccination; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
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Mark Paul Schloegel, Popham Law Firm, Kansas City, MO, for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On August 31, 2015, petitioner 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”]. Petitioner alleges that she suffered a shoulder injury
related to vaccine administration [“SIRVA”] as a result of her October 9, 2012 influenza
[“flu”] vaccination. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On December 21, 2015, a ruling on entitlement was issued, finding petitioner
entitled to compensation for her SIRVA. On February 16, 2016, respondent filed a
Proffer on Award of Compensation [“Proffer”] indicating petitioner should be awarded
$120,000.00 in damages for actual and projected pain and suffering, and $1,159.89 in
damages for past unreimbursable expenses. Proffer at 2. In the Proffer, respondent
represented that petitioner agrees with the proffered award. Based on the record as a
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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 information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the 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).
whole, the undersigned finds that petitioner is entitled to an award as stated in the
Proffer.
Respondent further proffered that petitioner shoulder be awarded $13,295.13 for
attorneys’ fees and costs. Proffer at 3. In accordance with General Order #9, the
Proffer indicates that petitioner represents that she incurred no out-of-pocket expenses.
The Proffer further indicates that petitioner agrees with the proffered award. The
Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300
aa-15(e). Based on the reasonableness of petitioner’s request and the lack of any
objection by respondent, the undersigned GRANTS the request for approval and
payment of attorneys’ fees and costs.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
A. A lump sum payment of $121,159.89 which represents compensation for
actual and projected pain and suffering ($120,000.00) and past
unreimbursable expenses ($1,159.89), in the form of a check payable to
petitioner, Barbara Lykins. This amount represents compensation for all
damages that would be available under § 300aa-15(a).
B. A lump sum payment of $13,295.133 in the form of a check jointly payable
to petitioner and petitioner’s counsel, Mark Schloegel, Esq., for attorneys’
fees and costs.
The clerk of the court is directed to enter judgment in accordance with this
decision.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
BARBARA LYKINS, )
)
Petitioner, )
)
v. ) No. 15-951V
) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND ) SPU
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 31, 2015, petitioner, Barbara Lykins, filed a petition for compensation under
the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”),
alleging that she suffered from a shoulder injury related to vaccine administration (“SIRVA”) as
a result of receiving a seasonal influenza (“flu”) vaccine on October 8, 2012. On December 18,
2015, respondent filed her Rule 4(c) Report stating that petitioner’s arm injury is consistent with
SIRVA and conceding that her SIRVA is compensable under the Vaccine Act. Accordingly, on
December 21, 2015, Chief Special Master Dorsey issued a Ruling on Entitlement finding that
petitioner is entitled to compensation for SIRVA.
I. Items of Compensation
For the purposes of this proffer, the term “vaccine-related” is as described in
Respondent’s Rule 4(c) Report filed on December 18, 2015.
A. Future Unreimbursable Expenses
The parties agree that based upon the evidence of record, petitioner will not require future
care for her vaccine-related injury. Therefore, respondent proffers that petitioner should be
awarded no future unreimbursable expenses under 42 U.S.C. § 300aa-15(a)(1).
Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, petitioner has not incurred and
will not incur any loss of earnings as a result of her vaccine injury. Therefore, respondent
proffers that petitioner should be awarded no actual or anticipated loss of earnings under
42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $120,000.00 in actual and
projected pain and suffering. This amount reflects that the award for projected pain and
suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner
agrees.
D. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $1,159.89. Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no outstanding Medicaid liens against her.
F. Attorneys’ Fees and Costs
Petitioner has supplied documentation of reasonable attorneys’ fees and litigation costs in
the amount of $13,295.13, incurred by petitioner’s counsel in pursuit of this petition. In
compliance with General Order #9, petitioner has indicated that she did not incur any out-of-
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pocket expenses in proceeding on the petition. Respondent proffers that petitioner should be
awarded $13,295.13 for attorneys’ fees and costs. Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
lump sum payments as described below and request that the Chief Special Master’s decision and
the Court’s judgment award the following: 1
A. A lump sum payment of $121,159.89, representing compensation for pain and
suffering and past unreimbursable expenses, in the form of a check payable to petitioner; and
B. A lump sum payment of $13,295.13 in the form of a check payable to petitioner and
petitioner’s attorney, Mark Schloegel, Esq., for attorneys’ fees and costs. Petitioner agrees to
endorse this payment to petitioner’s attorney.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner: $121,159.89
B. Reasonable Attorneys’ Fees and Costs: $13,295.13
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
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 lost earnings, and future pain and suffering.
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MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
s/ Justine Walters__________
JUSTINE WALTERS
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) 307-6393
DATE: February 16, 2016
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