United States Court of Federal Claims, 2021

Miske v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided April 29, 2021 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-0983V UNPUBLISHED

JEANNE M. MISKE, Chief Special Master Corcoran

Petitioner, Filed: March 30, 2021 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)

Richard H. Moeller, Moore, Heffernan, et al., LLP, Sioux City, IA, for Petitioner. Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On July 9, 2019, Jeanne M. Miske 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 Vaccination Administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccine on September 27, 2018 in her right shoulder. Petition at 1. Petitioner further alleges that she suffered the residual effects and complications of her vaccine-related injury for more than six months after vaccination. Petition at 8. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On December 28, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation. On March 29, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $60,004.17, consisting of $55,000.00 for pain and suffering and $5,004.17 for unreimbursed medical expenses. Proffer at 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 $60,004.17 (consisting of $55,000.00 for pain and suffering and $5,004.17 for unreimbursed medical 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

JEANNE M. MISKE,

Petitioner,

Case No. 19-983V (ECF) v. CHIEF SPECIAL MASTER

CORCORAN SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Procedural History

On December 18, 2020, respondent filed a Vaccine Rule 4(c) report concluding that Jeanne M. Miske (“petitioner”) suffered an injury that is compensable under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to - 34 (“the Act”). Accordingly, on December 28, 2020, the Chief Special Master issued a Ruling on Entitlement, finding that petitioner was entitled to compensation under the Act. II. Items of Compensation and Form of the Award

Based upon the evidence of record, respondent proffers that petitioner should be awarded $60,004.17. The award is comprised of the following: $55,000.00 for pain and suffering and $5,004.17 for unreimbursed medical expenses. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a) regarding her September 27, 2018, influenza vaccination. Petitioner agrees.1 III. Form of the Award

The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $60,004.17, in the form of a check payable to petitioner. Petitioner agrees.

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

Respectfully submitted, BRIAN M. BOYNTON Acting Assistant Attorney General 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

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. s/ Mark K. Hellie MARK K. HELLIE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 T: (202) 616-4208 E: [email protected]

DATED: March 29, 2021

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). 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.

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