McMahon v. Secretary of Health and Human Services ( 2024 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-0864V
JUDY MCMAHON, Chief Special Master Corcoran
Petitioner,
v. Filed: October 23, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Mary Novakovic, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON DAMAGES1
On June 9, 2023, Judy McMahon filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.1 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as the result of an influenza (“flu”) vaccine received on
September 13, 2021. Petition (ECF No. 1). The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On September 11, 2024, a Ruling on Entitlement was issued, finding Petitioner
entitled to compensation for a SIRVA. On October 21, 2024, Respondent filed a Proffer
on award of compensation (“Proffer”). Respondent represented that Petitioner agrees
with the proffered award. Id. at 2. 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 Proffer, I award the following compensation:
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (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.
A lump sum of $87,912.76 (representing $87,500.00 for pain and suffering,
and $412.76 for past unreimbursable expenses) in the form of a check payable to
Petitioner. Proffer at 2. This amount represents compensation for all damages that would
be available under Section 15(a). Id.The Clerk of Court is directed to enter judgment in accordance with this decision.2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 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
JUDY MCMAHON,
Petitioner,
v. No. 23-864V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON DAMAGES
On June 9, 2023, Judy McMahon (“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 Table shoulder injury related to vaccine
administration (“SIRVA”), as the result of an influenza (“flu”) vaccination received on March 3,
2022. Petition at 1. On May 15, 2024, the Secretary of Health and Human Services
(“respondent”) filed a Rule 4(c) Report arguing that this case was not appropriate for
compensation. ECF No. 19. On July 25, 2024, the Chief Special Master issued Findings of Fact
and Conclusions of Law in favor of petitioner. ECF No. 20. On September 4, 2024, respondent
filed an Amended Rule 4(c) Report declining to continue to defend and requesting a ruling on
entitlement. ECF No. 22. On September 11, 2024, the Chief Special Master issued a Ruling on
Entitlement finding petitioner was entitled to compensation. ECF No. 23.1
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Respondent maintains his right to seek review of the Findings of Fact and Conclusions of Law
and the Ruling on Entitlement.
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I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $87,500.00 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 $412.76. 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 following2: a lump sum payment of $87,912.76 in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Judy McMahon: $87,912.76
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
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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.
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C. SALVATORE D’ALESSIO
Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
COLLEEN C. HARTLEY
Assistant Director
Torts Branch, Civil Division
/s/ Mary Novakovic
MARY NOVAKOVIC
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) 616-2879
Date: October 21, 2024 Email: Mary.E.Novakovic@usdoj.gov
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