Magee v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1502V UNPUBLISHED

MIYEITA MAGEE, Chief Special Master Corcoran

Petitioner, Filed: November 20, 2019 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On September 28, 2018, Miyeita Magee 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). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 13, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for a SIRVA. On November 20, 2019, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $110,909.00. Proffer at 1. This amount consists of $107,500.00 for pain and suffering, $3,059.00 for past lost earnings, and $350.00 for past unreimbursed expenses. Id. In

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means the ruling will be available to anyone with access to the internet. 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 (2012). the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $110,909.00 in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a).

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

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran 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 __________________________________________ ) MIYEITA MAGEE, ) ) Petitioner, ) ) No. 18-1502V (ECF) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________)

RESPONDENT’S PROFFER ON AWARD OF DAMAGES

On August 6, 2019, respondent, the Secretary of Health and Human Services, filed his

Rule 4(c) Report conceding entitlement to compensation in this matter alleging a Shoulder Injury

Related to Vaccine Administration following an influenza vaccination. On August 13, 2019, the

Court entered its Ruling on Entitlement, finding petitioner Miyeita Magee entitled to Vaccine

Act compensation. Respondent now proffers that petitioner receive a compensation award

consisting of a lump sum of $110,909.00 in the form of a check payable to petitioner, Miyeita

Magee. 1 This amount consists of $107,500.00 for pain and suffering, $3,059.00 for past lost

earnings, and $350.00 for past unreimbursed expenses, and represents compensation for all

elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled. 2

Petitioner agrees with the proffered award of $110.909.00. 3

1 Petitioner is a competent adult. No guardianship is required. 2 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. 3 This proffer does not include any award for attorneys’ fees and costs that may be awarded pursuant to 42 U.S.C. § 300aa-15(e). Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division

s/Voris E. Johnson, Jr. VORIS E. JOHNSON, JR. Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-4136

Dated: November 20, 2019