        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 14-1090V
                                       Filed: April 16, 2015
                                           Unpublished

****************************
VIRGIL KIM,                            *
                                       *
                   Petitioner,         *      Damages Decision Based on Proffer;
                                       *      Tetanus-Diphtheria-acellular Pertussis;
                                       *      TDaP; Table Injury; Brachial Neuritis;
SECRETARY OF HEALTH                    *      Brachial Plexitis; Special Processing
AND HUMAN SERVICES,                    *      Unit
                                       *
                   Respondent.         *
                                       *
****************************
Amber Wilson, Esq., Maglio, Christopher, and Toale, PA (DC), Washington, DC for
      petitioner.
Claudia Gangi, Esq., U.S. Department of Justice, Washington, DC for respondent.

                                DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

      On November 7, 2014, Virgil Kim 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 he “developed pain in the left
shoulder and he was suffering from numbness and tingling in his hands” after receiving
the DTaP and influenza vaccinations on October 12, 2013. Petition at 1. Petitioner was
“diagnosed . . . with left brachial plexitis triggered by vaccination (DTaP).” Petition at 2.
The case was assigned to the Special Processing Unit of the Office of Special Masters.

       On February 10, 2015, I issued a ruling on entitlement, finding petitioner had
established that he suffered a Table injury (brachial neuritis) and was entitled to
compensation. On April 14, 2015, respondent filed a proffer on award of compensation

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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, I agree that the identified material fits within this definition, I will redact such
material from public access.

2National 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 (2006).
[“Proffer”] indicating petitioner should be awarded “a lump sum payment of $91,255.90
(representing compensation for actual and projected pain and suffering, past
unreimbursable expenses related to the vaccine-related injury, and projected
unreimbursable expenses related to the vaccine-related injury).” Proffer at 1-2.

      Pursuant to the terms stated in the attached Proffer, I award petitioner a lump
sum payment of $91,255.90 in the form of a check payable to petitioner, Virgil
Kim. This amount represents compensation for all damages that would be available
under 42 U.S.C. § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

                                        s/Denise K. Vowell
                                        Denise K. Vowell
                                        Chief Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


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          Case 1:14-vv-01090-UNJ Document 21 Filed 04/14/15 Page 1 of 3



             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
_______________________________________
                                        )
VIRGIL KIM,                             )
                                        )
                        Petitioner,     )
                                        )
            v.                          ) No. 14-1090V
                                        ) Chief Special Master Vowell
SECRETARY OF HEALTH AND HUMAN ) ECF
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, petitioner is entitled to an

award of $1,000.00 for projected unreimbursable medical care expenses as provided under 42

U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.

       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 his vaccine-related injury. Accordingly, the Court

should not award lost future earnings as provided under § 300aa-15(a)(3)(A). Petitioner agrees.




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          Case 1:14-vv-01090-UNJ Document 21 Filed 04/14/15 Page 2 of 3



        C. Pain and Suffering

        Respondent proffers that petitioner should be awarded $90,000.00 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 Unreimbursed Expenses

        Evidence supplied by petitioner documents his expenditure of past un-reimbursable

expenses related to his vaccine-related injury. Respondent proffers that the petitioner is entitled

to past un-reimbursed expenses in the amount of $255.90. Petitioner agrees.

        E. Medicaid Lien

        Petitioner represents that there are no outstanding Medicaid liens related to his vaccine-

related injury.

        F. Attorneys’ 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

        The parties recommend that the compensation provided to petitioner should be made

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

decision and the Court’s judgment award the following : a lump sum payment of $91,255.90

(representing compensation for actual and projected pain and suffering, past unreimbursable




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          Case 1:14-vv-01090-UNJ Document 21 Filed 04/14/15 Page 3 of 3



expenses related to the vaccine-related injury, and projected unreimbursable expenses related to

the vaccine-related injury), in the form of a check payable to petitioner. 1

       III.    Summary of Recommended Payments Following Judgment

       A lump sum payment of $91,255.90, representing compensation for actual and projected

pain and suffering, and past and projected unreimbursable expenses related to the vaccine-related

injury, payable to petitioner.

                                                       Respectfully submitted,

                                                       BENJAMIN C. MIZER
                                                       Acting Assistant Attorney General

                                                       RUPA BHATTACHARYYA
                                                       Director
                                                       Torts Branch, Civil Division

                                                       VINCENT J. MATANOSKI
                                                       Deputy Director
                                                       Torts Branch, Civil Division

                                                       LYNN E. RICCIARDELLA
                                                       Senior Trial Attorney
                                                       Torts Branch, Civil Division

                                                       /s/ Claudia B. Gangi
                                                       CLAUDIA 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 14, 2015

1
  Should petitioner 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.


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