In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1379V
Filed: April 27, 2016
UNPUBLISHED
****************************
BARBARA J. SMITH, *
*
Petitioner, * Damages Decision Based on Proffer;
* Tetanus-Diphtheria-Acellular-Pertussis
v. * Vaccine (“TDaP”); Shoulder Injury
SECRETARY OF HEALTH * Related to Vaccine Administration
AND HUMAN SERVICES, * (“SIRVA”); Special Processing Unit
* (“SPU”)
Respondent. *
*
****************************
Laurie C. TeWinkle, Law Offices of L.C. TeWinkle, LLC, Erie, PA, for petitioner.
Gordon Elliot Shemin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On November 16, 2015, Barbara J. Smith (“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”). Petitioner alleges that she suffered a shoulder
injury as a result of a tetanus-diphtheria-acellular pertussis (“TDaP”) vaccine she
received on October 10, 2014. Petition at 1-2. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On April 25, 2016, a ruling on entitlement was issued, finding petitioner entitled to
compensation. On April 27, 2016, respondent filed a proffer on award of compensation
(“Proffer”) stating that petitioner should be awarded $85,000.00. Proffer at 1. In the
Proffer, respondent represented that petitioner agrees with the proffered award. Based
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
on the record as a whole, the undersigned finds that petitioner is entitled to an award as
stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $85,000.00, in the form of a check payable to
petitioner, Barbara J. Smith. This amount represents compensation for all damages
that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief 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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
BARBARA J. SMITH, )
)
Petitioner, ) No. 15-1379V
) Chief Special Master Dorsey
v. ) ECF
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
For purposes of this proffer, the term “vaccine-related” is as described in Respondent’s
Rule 4(c) Report, filed on April 25, 2016, conceding entitlement in this case. Based upon the
evidence of record, respondent proffers that petitioner should be awarded $85,000.00, which
represents all elements of competition to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a) for her vaccine-related injury. Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $85,000.00 in the form of a check payable to petitioner. 1
Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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.
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
LISA A. WATTS
Senior Trial Attorney
Torts Branch, Civil Division
/s/ Gordon Shemin
GORDON SHEMIN
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
P.O. Box l46
Benjamin Franklin Station
Washington, D.C. 20044-0146
(202) 616-4208
Dated: April 27, 2016.