United States Court of Federal Claims, 2020

Mueller v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided January 22, 2020 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-1837V UNPUBLISHED

MARK MUELLER, Chief Special Master Corcoran

Petitioner, Filed: December 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)

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On November 30, 2018, Mark Mueller 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on December 3, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 26, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On December 17, 2019, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $90,651.33 (consisting of $90,000.00 for pain and suffering and $651.33 for past unreimbursable expenses). Proffer at 3. 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 $90,651.33 (consisting of $90,000.00 for pain and suffering and $651.33 for 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

) MARK MUELLER, )

) Petitioner, )

) No. 18-1837V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

) Respondent. )

) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On November 30, 2018, Mark Mueller (“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 he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”), “including left shoulder adhesive capsulitis, tendinosis of the supraspinatus and infraspinatus tendons, and articular and bursal sided fraying,” as a result of an influenza (“flu”) vaccine he received on December 3, 2017. Petition at 1. On November 26, 2019, 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, and the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation the same day. ECF No. 28; ECF No. 29.

I. Items of Compensation

A. Pain and Suffering Respondent proffers that Mark Mueller 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 Mark Mueller’s expenditure of past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $651.33, as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). 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 Mark Mueller 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 $90,651.33, representing compensation for pain and suffering ($90,000.00), and past unreimbursable expenses ($651.33), in the form of a check payable to petitioner, Mark Mueller. III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Mark Mueller: $90,651.33

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 HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division s/ Sarah C. Duncan SARAH C. DUNCAN 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) 514-9729 Fax: (202) 616-4310

DATED: December 17, 2019

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. 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). 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. 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.

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