Mahan v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1041V UNPUBLISHED

LORY MAHAN, Chief Special Master Corcoran

Petitioner, Filed: May 11, 2022 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)

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On July 17, 2018, Lory Mahan 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 Table injury – Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of an influenza (“flu”) vaccine administered to her on September 7, 2016. Petition, ECF No. 1 at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On January 21, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On May 11, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $60,000.00, representing compensation for her pain and suffering. Proffer at 2. In the Proffer,

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 Decision 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.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 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 $60,000.00, representing compensation for her pain and suffering in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a).

The Clerk of 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

) LORY MAHAN, ) ) Petitioner, ) ) No. 18-1041V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On July17, 2018, Lory Mahan (“petitioner”) filed a petition for compensation under the

National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or

“Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration

(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza

vaccine she received on September 7, 2016. Petition at 1. On December 17, 2021, the Chief

Special Master issued Findings of Fact, determining that the vaccination alleged as causal in this

case was administered to petitioner in the right deltoid on September 7, 2016, and that the onset

of petitioner’s pain occurred within 48 hours of her vaccination. ECF No. 50. On January 18,

2022, respondent filed a Supplemental Rule 4(c) Report advising that he would not defend the

case during further proceedings before the Office of Special Masters. ECF No. 51 at 6. On

January 21, 2022, the Chief Special Master issued a Ruling on Entitlement finding petitioner

entitled to compensation. ECF No. 53. I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $60,000.00 in pain and suffering.

See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

This amount represents all elements of compensation to which petitioner is entitled under

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

II. Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respondent recommends that the compensation provided to petitioner should be made through a

lump sum payment as described below and requests that the Chief Special Master’s decision and

the Court’s judgment award the following1: a lump sum payment of $60,000.00, in the form of a

check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Lory Mahan: $60,000.00

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

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

HEATHER L. PEARLMAN 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 lost earnings and future pain and suffering. 2 DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division

/s/ Catherine E. Stolar CATHERINE E. STOLAR 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) 353-3299 Fax: (202) 616-4310 Email: catherine.stolar@usdoj.gov

DATED: May 11, 2022