Tully v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1087V
UNPUBLISHED
MARIN TULLY, Chief Special Master Corcoran
Petitioner, Filed: January 23, 2020
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)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On July 25, 2018, Marin Tully 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 a left shoulder injury related to vaccine
administration (“SIRVA”) as a result of the influenza (“flu”) vaccine administered on
October 20, 2015. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On July 9, 2019, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for her SIRVA. On January 22, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $77,352.75.
Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 ruling 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).
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 $77,352.75 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
THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MARIN TULLY,
Petitioner,
v. No. 18-1087V
Chief Special Master Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
PROFFER ON AWARD OF COMPENSATION
On July 8, 2019, respondent filed a Rule 4(c) Report, in which he conceded that
petitioner sustained the onset of a left shoulder injury related to vaccine administration
(“SIRVA”) within the time period set forth in the Vaccine Injury Table, following her receipt of
an influenza (“flu”) vaccine administered on October 20, 2015. Docket No. 27. On July 9,
2019, the Court issued a Ruling on Entitlement, finding that petitioner is entitled to
compensation. Docket No. 28.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that the Court should award petitioner a lump sum of $75,000.00 for
her actual and projected pain and suffering. This amount reflects that the award for projected
pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4).
Petitioner agrees.
B. Past Unreimbursable Expenses
Respondent proffers that the Court should award petitioner a lump sum of $2,352.75 for
past unreimbursable expenses, as provided under 42 U.S.C. § 300aa-15(a)(1)(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 of $77,352.75, in the form of a check payable to petitioner, which represents
all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-
15(a). 1 Petitioner agrees.
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
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
1
Should petitioner die prior to the entry of judgment, the parties reserve the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future pain
and suffering.
2
s/ Claudia B. Gangi
CLAUDIA B. GANGI
Senior 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) 616-4138
claudia.gangi@usdoj.gov
Dated: January 22, 2020
3