Mitchell v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1751V
UNPUBLISHED
DIANA L. MITCHELL, Chief Special Master Corcoran
Petitioner, Filed: June 19, 2020
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)
Elizabeth Martin Muldowney, Sands Anderson PC, Richmond, VA, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On November 8, 2017, Diana Mitchell 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”) as a result of her November 14, 2014 influenza (“flu”)
vaccination. Petition at 1. Petitioner further alleges that the vaccine was administered
within the United States, that she suffered the residual effects of her injury for more than
six months, and that there has been no prior award or settlement of a civil action on her
behalf as a result of her injury. See Petition at ¶¶ 1, 14-15. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On November 16, 2018, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On June 16, 2020, Respondent filed a proffer on
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
award of compensation (“Proffer”) indicating Petitioner should be awarded $76,211.76
(representing an award of $76,000.00 in pain and suffering, and $211.76 in past
unreimbursable expenses). Proffer at 1-2. In 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 $76,211.76 (representing an award of $76,000.00 in pain and
suffering, and $211.76 in past unreimbursable expenses) 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
)
DIANA L. MITCHELL, )
)
Petitioner, )
) No. 17-1751V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On November 8, 2017, Diana L. Mitchell (“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 November 14, 2014. Petition at 1. On November 13, 2018,
the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating
that this case is appropriate for compensation under the terms of the Act for a SIRVA Table
injury, and on November 16, 2018, the Chief Special Master issued a Ruling on Entitlement
finding petitioner entitled to compensation. ECF No. 33; ECF No. 34.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $76,000.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $211.76. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
These amounts represent 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 following 1: a lump sum payment of $76,211.76, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Diana L. Mitchell: $76,211.76
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
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
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
/s/ Colleen C. Hartley
COLLEEN C. HARTLEY
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) 616-3644
DATED: June 16, 2020
3