McFarland v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0576V
UNPUBLISHED
JOHN McFARLAND, Chief Special Master Corcoran
Petitioner, Filed: October 26, 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)
Jonathan Svitak, Shannon Law Group, Woodbridge, IL, for Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On May 8, 2020, John McFarland 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”) vaccine received on October 2,
2018. Petition at ¶¶ 2, 9. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On August 24, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for a left SIRVA. ECF 22. On October 26, 2021, Respondent filed a
proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded
$60,798.50. Proffer at 1.
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
This consists of an award of $60,000.00 for actual pain and suffering and an award
for $798.50 for past unreimbursed expenses. Id.
In the Proffer, Respondent further 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 $60,798.50 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 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
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
____________________________________
)
JOHN MCFARLAND, ) No. 20-576V
) Chief Special Master Brian H. Corcoran
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On August 24, 2021, respondent filed a Vaccine Rule 4(c) report conceding that
entitlement to compensation was appropriate under the terms of the Vaccine Act. ECF No. 21.
The same day, Chief Special Master Corcoran issued a Ruling on Entitlement, finding that
petitioner received an influenza (“flu”) vaccination on October 2, 2018, and was entitled to
vaccine compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”), as
defined in the Vaccine Injury Table, and related sequela. ECF No. 22.
I. Amount of Compensation
Respondent now proffers that, based on the Chief Special Master’s entitlement ruling and
the evidence of record, petitioner should be awarded a lump sum of $60,798.50, consisting of the
following: $60,000.00 for actual pain and suffering, and $798.50 for past unreimbursed
expenses. This amount represents all elements of compensation to which petitioner would be
entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
1
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made as
described below, and request that the Chief Special Master’s damages decision and the Court’s
judgment award the following: 1
A. Petitioner’s Damages
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $60,798.50, in the form of a check payable to petitioner.
Petitioner agrees.
B. Guardianship
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
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
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 pain and suffering, and future lost wages.
2
/s/ Kyle E. Pozza_____________
KYLE E. POZZA
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) 616-3661
E-mail: Kyle.Pozza@usdoj.gov
Dated: October 26, 2021
3