Scallion v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0992V
UNPUBLISHED
MARY KATHERINE SCALLION, Chief Special Master Corcoran
Petitioner, Filed: November 16, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Pneumococcal Conjugate Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On July 11, 2019, Mary Katherine Scallion 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 from a shoulder injury related to
vaccine administration (“SIRVA”), as a result of receiving a pneumococcal vaccine
administered on October 11, 2018. Petition at 1. Petitioner further alleges that her injury
lasted for more than six months. Petition at 3. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On November 13, 2020, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for SIRVA. On November 16, 2020, Respondent filed a proffer
on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of
$94,086.89, (consisting of $92,500.00 in pain and suffering and $1,586.89 for past
unreimbursable expenses related to her vaccine-related injury). Proffer at 1-2. In the
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
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 $94,086.89, (consisting of $92,500.00 in pain and suffering and
$1,586.89 for past unreimbursable expenses related to her vaccine-related injury)
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
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
)
MARY KATHERINE SCALLION, )
)
Petitioner, )
) No. 19-992V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On July 11, 2019, Mary Katherine Scallion (“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”), as amended. Petitioner alleges that she suffered from a
shoulder injury related to vaccine administration (“SIRVA”), as a result of receiving a
pneumococcal vaccine administered on October 11, 2018. Petition at 1. On November 13, 2020,
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 November 13, 2020, the Chief Special Master issued a Ruling on Entitlement
finding petitioner entitled to compensation. ECF No. 20; ECF No. 21.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $92,500.00 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 $1,586.89. See 42 U.S.C. § 300aa-
15(a)(1)(B). 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 $94,086.89, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Mary Katherine Scallion: $94,086.89
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
1
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief.
2
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s Sarah B. Rifkin
SARAH B. RIFKIN
Trial Attorney
U.S. Department of Justice
Torts Branch, Civil Division
P.O. Box 146, Benjamin Franklin Station
Washington D.C. 20044-1046
Tel: (202) 305-5997
E-mail: Sarah.Rifkin@usdoj.gov
DATED: November 16, 2020
3