In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-660V
Filed: December 6, 2016
UNPUBLISHED
****************************
GAYLE E. GAGNE, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (“Flu”); Shoulder Injury
* Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”);
AND HUMAN SERVICES, * Special Processing Unit (“SPU”)
*
Respondent. *
*
****************************
Kathy Lee, Cline, Farrell, et al., Indianapolis, IN, for petitioner.
Ann Martin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On June 3, 2016, 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 related to vaccine
administration (“SIRVA”) to her left shoulder following a September 16, 2014 influenza
(“flu”) vaccination. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On August 24, 2016, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a SIRVA. On December 2, 2016, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded a lump sum
payment of $241,384.78 in the form of a check payable to petitioner, Gayle E. Gagne;
$6,012.38 in the form of a check payable jointly to petitioner and OrthoIndy; $17,772.70
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
in the form of a check payable jointly to petitioner and Indiana Orthopaedic Hospital;
and $6,740.78 in the form of a check payable jointly to petitioner and Athletic &
Therapeutic Institute. In the Proffer, respondent represented that petitioner agrees with
the proffered award. Based 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
A lump sum of $241,384.78, representing future unreimbursable
medical expenses ($25,391.00), pain and suffering ($200,000.00), and
past unreimbursable medical expenses ($15,993.78), in the form of a
check payable to petitioner, Gayle E. Gagne.
A lump sum payment of $6,012.38 representing compensation for
past unreimbursable expenses payable jointly to petitioner, Gayle E.
Gagne, and OrthoIndy, P.O. Box 6284, Indianapolis, IN, 46206-6284,
Acct: 2047151.
A lump sum payment of $17,772.70 representing compensation for
past unreimbursable expenses payable jointly to petitioner, Gayle E.
Gagne, and Indiana Orthopaedic Hospital, P.O. Box 6018,
Indianapolis, IN, 46206-6018, Acct: V00000745185.
A lump sum payment of $6,740.78 representing compensation for
past unreimbursable expenses payable jointly to petitioner, Gayle E.
Gagne, and Athletic & Therapeutic Institute, P.O. Box 371863,
Pittsburgh, PA, 15250-7863, Acct: 868605.
Proffer at 3-4.
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
____________________________________
)
GAYLE E. GAGNE, )
)
Petitioner, )
) No. 16-660V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Future Unreimbursable Medical Expenses
For the purposes of this proffer, the term “vaccine-related” is as described in the Chief
Special Master’s Ruling on Entitlement dated August 24, 2016. The parties agree that
petitioner will incur future unreimbursable medical expenses resulting from her vaccine-related
injury due to an upcoming surgical procedure and subsequent physical therapy, which will take
place in the year 2017. Based upon the evidence of record, respondent proffers that petitioner
should be awarded a lump sum of $25,391.00 to cover the costs of these future unreimbursable
medical expenses. Petitioner agrees.
B. Lost Earnings
The parties agree that based upon the evidence of record, petitioner has not been
subject to compensable lost earnings in the past nor will she sustain future lost earnings due
to her vaccine-related injury.
C. Pain and Suffering
Respondent proffers that petitioner should be awarded $200,000.00 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 past unreimbursable expenses in the form of
reimbursement owed to petitioner to cover payments that petitioner has already made to medical
care providers for her vaccine-related injury, as well as outstanding balances due to such
providers. Respondent proffers that petitioner is entitled to total past unreimbursable expenses in
the amount of $46,519.64. The allocation of this amount is as follows:
1. Respondent proffers that a check for $15,993.78 should be made payable to
petitioner.
2. Respondent proffers that a check for $6,012.38 should be made payable jointly to
petitioner and OrthoIndy.
3. Respondent proffers that a check for $17,772.70 should be made payable jointly to
petitioner and Indiana Orthopaedic Hospital.
4. Respondent proffers that a check for $6,740.78 should be made payable jointly to
petitioner and Athletic & Therapeutic Institute.
Petitioner agrees.
E. Medicaid Lien
Petitioner represents that there are no Medicaid liens outstanding against her.
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II. Form of the Award
The parties recommend that the compensation provided to petitioner should be
made through a combination of lump sum payments, 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 $241,384.78, representing future unreimbursable medical
expenses ($25,391.00), pain and suffering ($200,000.00), and past unreimbursable medical
expenses ($15,993.78), in the form of a check payable to Gayle E. Gagne, petitioner;
B. A lump sum payment of $6,012.38 representing compensation for past
unreimbursable expenses, payable jointly to Gayle E. Gagne, petitioner, and
OrthoIndy
P.O. Box 6284
Indianapolis, IN 46206-6284
Acct: 2047151
Petitioner agrees to endorse this payment to OrthoIndy.
C. A lump sum payment of $17,772.70 representing compensation for past
unreimbursable expenses, payable jointly to Gayle E. Gagne, petitioner, and
Indiana Orthopaedic Hospital
P.O. Box 6018
Indianapolis, IN 46206-6018
Acct: V00000745185
Petitioner agrees to endorse this payment to Indiana Orthopaedic Hospital.
D. A lump sum payment of $6,740.78 representing compensation for past
unreimbursable expenses, payable jointly to Gayle E. Gagne, petitioner, and
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 and future pain and suffering
3
Athletic & Therapeutic Institute
P.O. Box 371863
Pittsburgh, PA 15250-7863
Acct: 868605
Petitioner agrees to endorse this payment to Athletic & Therapeutic Institute.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioner: $ 241,384.78
B. Lump Sum paid jointly to petitioner and OrthoIndy: $ 6,012.38
C. Lump Sum paid jointly to petitioner and Indiana Orthopaedic
Hospital: $ 17,772.70
D. Lump Sum paid jointly to petitioner and Athletic & Therapeutic
Institute: $ 6,740.78
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
GLENN A. MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
s/ ANN D. MARTIN
ANN D. MARTIN
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 2, 2016 Tel.: (202) 307-1815
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