McCann v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0524V

DAPHNE MCCANN, Chief Special Master Corcoran Petitioner, Filed: October 19, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On January 11, 2021, Daphne McCann filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). She filed an amended petition on June 15, 2022. ECF No. 18. Petitioner alleges that she suffered a right shoulder injury, a defined Table injury, after receiving an influenza vaccine on October 23, 2018. Id. at 1, ¶¶ 2, 14, 19. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 18, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her SIRVA. In this case, Respondent filed a combined Rule 4(c) Report and Proffer on award of compensation (“Rule 4(c) Report and Proffer”) indicating Petitioner should be awarded $68,489.59, representing $67,500.00 for pain and suffering

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). $989.593 for past unreimbursable expenses. Rule 4(c) Report and Proffer at 6-7.

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 Rule 4(c) Report and Proffer.

Pursuant to the terms stated in combined Rule 4(c) Report and Proffer,4 I award Petitioner a lump sum payment of $68,489.59, representing $67,500.00 for pain and suffering $989.59 for actual unreimbursable expenses in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a).

The Clerk of Court is directed to enter judgment in accordance with this decision.5 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3 Although there was some initial confusion due to one entry which showed this amount was $989.56, instead of $989.59, the parties have confirmed that the correct amount is $989.59. See Informal Remark, dated Oct. 18, 2023.

4 Because the Rule 4(c) Report and Proffer contains detailed medical information, it will not be filed as an attachment to this Decision.

5 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.