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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0450V
UNPUBLISHED
MICHELLE A. MILLER, also known as Chief Special Master Corcoran
MICHELLE MILLER GORSKI,
Filed: January 27, 2021
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
John L. DeFazio, Viola Cummings and Lindsay, LLP, Niagara Falls, NY, for Petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES1
On March 26, 2019, Michelle A. Miller 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 “left shoulder impingement syndrome”
and “Glenohumeral Internal Rotation Deficit” that was caused-in-fact by an influenza
(“flu”) vaccine that was administered on October 3, 2016. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On January 22, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On January 26, 2021, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $47,861.54,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
(comprised of $47,500.00 for pain and suffering and $361.54 for unreimbursed out-of-
pocket medical expenses). Proffer at 1. In the 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 $47,861.54 (comprised of $47,500.00 for pain and suffering, and
$361.54 for unreimbursed out-of-pocket medical expenses) 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
MICHELLE A. MILLER, aka MICHELLE
MILLER GORSKI,
Petitioner, No. 19-450V
Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Procedural History and Items of Compensation
On January 21, 2021, respondent filed his Vaccine Rule 4(c) report, and concededed that
entitlement to compensation was appropriate under the terms of the Vaccine Act. Thereafter, on
January 22, 2021, the Chief Special Master issued a Ruling on Entitlement finding that petitioner
was entitled to vaccine compensation for her left Shoulder Injury Related to Vaccine
Administration (“SIRVA”). Based on the evidence of record, respondent proffers that petitioner
should be awarded $47,861.54, which is comprised of damages for pain and suffering in the
amount of $47,500.00, and damages for unreimbursed out-of-pocket medical expenses in the
amount of $361.54. This amount represents all elements of compensation to which petitioner
would be entitled under 42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
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.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $47,861.54, in the form of a check payable to petitioner. Petitioner
agrees.
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
Acting Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
s/ Mallori B. Openchowski
MALLORI B. OPENCHOWSKI
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, DC 20044-0146
Tel.: (202) 305-0660
DATED: January 26, 2021