Marshall v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-1272V Filed: November 9, 2018 UNPUBLISHED

NICOLE MARSHALL,

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

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

On September 15, 2017, Nicole Marshall (“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 from a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccination in her left arm on August 29, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 18, 2018, a ruling on entitlement was issued, finding petitioner entitled to compensation. On November 9, 2018, respondent filed a proffer on award of

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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). 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). compensation (“Proffer”) indicating petitioner should be awarded $90,000.00 in actual and projected pain and suffering reduced to net present value and $5,470.95 for past unreimbursable expenses for a total of $95,470.95. Proffer at 1-2. 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. Id.

Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner a lump sum payment of $95,470.95 (representing $90,000,00 in actual and projected pain and suffering reduced to net present value and $5,470.95 for past unreimbursable expenses) in the form of a check payable to petitioner, Nicole Marshall. 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/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 ____________________________________ ) NICOLE MARSHALL, ) ) Petitioner, ) ) v. ) No. 17-1272V ) Chief Special Master Dorsey ) ECF SECRETARY OF HEALTH AND ) SPU HUMAN SERVICES, ) ) Respondent. ) ____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On September 15, 2017, petitioner, Nicole Marshall, filed a petition for compensation

under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”),

alleging that she developed a shoulder injury related to vaccine administration (“SIRVA”) as a

result of receiving an influenza (“flu”) vaccine on August 29, 2016. On June 15, 2018,

respondent filed a Rule 4(c) Report indicating that petitioner is entitled to compensation for

SIRVA. For the purposes of this proffer, the term “vaccine-related” is as described in

Respondent’s Rule 4(c) Report. On June 18, 2018, Chief Special Master Dorsey issued a Ruling

on Entitlement finding that petitioner is entitled to compensation for SIRVA.

I. Items of Compensation

A. 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. B. Past Unreimbursable Expenses

Evidence supplied by petitioner documents her expenditure of past unreimbursable

expenses related to her SIRVA. Respondent proffers that petitioner should be awarded past

unreimbursable expenses in the amount of $5,470.95. Petitioner agrees.

C. Medicaid Lien

Petitioner represents that there are no outstanding Medicaid liens against her.

II. Form of the Award

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

through a lump sum payment of $95,470.95 in the form of a check payable to petitioner.1 This

represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-

15(a). Petitioner agrees.

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

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 lost earnings, and future pain and suffering.

-2- s/ Justine Walters__________ JUSTINE WALTERS 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) 307-6393

DATE: November 9, 2018

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