Sellers v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-435V

Filed: January 21, 2021

UNPUBLISHED

MIRANDA SELLERS, Special Master Horner

Petitioner, v. Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder SECRETARY OF HEALTH AND Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA)

Respondent.

Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On March 23, 2018, Miranda Sellers 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). (ECF No. 1, p. 1.)

On November 19, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. On January 19, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $72,500.00. (ECF No. 51, p. 1.) 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 $72,500.00 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/Daniel T. Horner Daniel T. Horner Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

MIRANDA SELLERS, )

)

Petitioner, ) No. 18-435V

) Special Master v. ) Daniel Horner

) ECF )

SECRETARY OF HEALTH ) AND HUMAN SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On March 23, 2018, Miranda Sellers (“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 (“flu”) vaccine she received on October 3, 2016. ECF No. 1. On April 30, 2019, respondent filed his Rule 4(c) Report, indicating that this case was not appropriate for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 18. On November 18, 2020, respondent filed an amended Rule 4(c) Report, indicating that respondent would not dispute that petitioner had satisfied the legal prerequisites for compensation under the terms of the Act for a SIRVA Table injury. ECF No. 47. On November 19, 2020, the Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 48. Respondent now proffers that petitioner receive an award of a lump sum of $72,500.00, in the form of a check payable to petitioner, an award comprised of $72,500.00 for past and future pain and suffering. This amount represents compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner is entitled. 1 Petitioner agrees.

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

Respectfully submitted, JOHN V. COGHLAN Deputy Assistant Attorney General, Federal Programs Branch, Civil Division C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Acting Deputy Director Torts Branch, Civil Division DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division s/Camille M. Collett CAMILLE M. COLLETT 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) 616-4098 E-mail: [email protected] Dated: January 19, 2021