Millican v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1274V
Filed: November 27, 2018
UNPUBLISHED
DOLORES MILLICAN,
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH Influenza (Flu) Vaccine; Shoulder
AND HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On September 16, 2017, Dolores Millican (“petitioner”) 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 her receipt of an
influenza (“flu”) vaccine on September 20, 2016, caused her to suffer a left-sided
shoulder injury related to vaccine administration (“SIRVA”). Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On June 19, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation for SIRVA. On November 27, 2018, respondent filed a proffer on
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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 $42,500.00
for pain and suffering, and $392.24 for out-of-pocket expenses, for a total of
$42,892.24. Proffer at 1. In the Proffer, respondent represented that petitioner agrees
with the proffered award. Based on the record as a whole, the undersigned finds that
petitioner is entitled to an award as stated in the Proffer. Id.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $42,892.24 (representing $42,500.00 for pain
and suffering and $392.24 for out-of-pocket expenses) in the form of a check
payable to petitioner, Dolores Millican. 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/Nora Beth Dorsey
Nora Beth Dorsey
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
)
DOLORES MILLICAN, )
)
Petitioner, )
) No. 17-1274V (ECF)
v. ) Chief Special Master Dorsey
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On June 19, 2018, respondent filed his Rule 4(c) Report conceding entitlement in the
above-captioned case. Chief Special Master Dorsey issued a Ruling on Entitlement on June 19,
2018, finding that petitioner was entitled to vaccine compensation for her Shoulder Injury Related
to Vaccine Administration (“SIRVA”). Based on the evidence of record, respondent proffers that
petitioner should be awarded $42,892.24. This amount includes $42,500.00 for pain and
suffering, and $392.24 for out-of-pocket expenses, and it represents all elements of compensation
to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner be made through a
lump sum payment of $42,892.24 in the form of a check payable to petitioner.1 Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
1
Should petitioner die prior to the entry of judgment, respondent reserves the right to move
the Court for appropriate relief. In particular, respondent would oppose any award for future
medical expenses, future pain and suffering, and future lost wages.
1
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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/Amy P. Kokot
AMY P. KOKOT
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Ben Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-4118
Dated: November 27, 2018
2