Marshall v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1203V
UNPUBLISHED
KYRIAN J. MARSHALL, Chief Special Master Corcoran
Petitioner,
v. Filed: June 9, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Damages Decision based on Proffer;
Influenza (Flu); Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA).
Kathy Ann Lee, Christie Farrell Lee & Bell, P.C., Indianapolis, IN, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On September 15, 2020, Kyrian J. Marshall 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 alleged that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered on
October 17, 2017. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On December 22, 2022, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for a Table SIRVA. On June 9, 2022, Respondent filed a proffer
on an award of compensation (“Proffer”). In the Proffer, Respondent represented that
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
Petitioner agrees with the proffered award. 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 the following
compensation:
A lump sum of $132,887.71 (representing $127,500.00 for pain and suffering,
$3,021.88 for past unreimbursable expenses, and $2,365.83 for lost wages) 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.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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KYRIAN MARSHALL,
Petitioner,
v. No. 20-1203V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On September 15, 2020, Kyrian Marshall (“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 vaccine she received on October 17, 2017. Petition at 1. On December 21, 2021,
the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating
that this case is appropriate for compensation under the terms of the Act for a SIRVA Table
injury, and on December 22, 2022, the Chief Special Master issued a Ruling on Entitlement
finding petitioner entitled to compensation. ECF No. 30; ECF No. 32.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $127,500.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents that she incurred past unreimbursable
expenses related to her vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $3,021.88. See 42 U.S.C. § 300aa-
15(a)(1)(B). Petitioner agrees.
C. Lost Wages
Evidence supplied by petitioner documents that she incurred past lost wages related to
her vaccine-related injury. Respondent proffers that petitioner should be awarded past lost
wages in the amount of $2,365.83. See 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.
These amounts represent all elements of compensation to which petitioner is entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following 1: a lump sum payment of $132,887.71, in the form of
a check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Kyrian Marshall: $132,887.71
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 lost earnings
and future pain and suffering.
2
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
/s/ Zoë R. Wade
ZOË R. WADE
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
zoe.wade@usdoj.gov
Date: June 9, 2022
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