         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1272V
                                    Filed: November 9, 2018
                                         UNPUBLISHED


    NICOLE MARSHALL,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU);
                                                             Damages Decision Based on Proffer;
    SECRETARY OF HEALTH                                      Influenza (Flu) Vaccine; Shoulder
    AND HUMAN SERVICES,                                      Injury Related to Vaccine
                                                             Administration (SIRVA)
                       Respondent.


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

       On September 15, 2017, Nicole Marshall (“petitioner”) 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 an
influenza (“flu”) vaccination in her left arm on August 29, 2016. Petition at 1. The case
was assigned to the Special Processing Unit of the Office of Special Masters.

      On June 18, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation. On November 9, 2018, respondent filed a proffer on award of

1
  The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
compensation (“Proffer”) indicating petitioner should be awarded $90,000.00 in actual
and projected pain and suffering reduced to net present value and $5,470.95 for past
unreimbursable expenses for a total of $95,470.95. Proffer at 1-2. In the Proffer,
respondent represented that petitioner agrees with the proffered award. Based on the
record as a whole, the undersigned finds that petitioner is entitled to an award as stated
in the Proffer. Id.

       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $95,470.95 (representing $90,000,00 in actual
and projected pain and suffering reduced to net present value and $5,470.95 for
past unreimbursable expenses) in the form of a check payable to petitioner,
Nicole Marshall. 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/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          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
____________________________________
                                    )
NICOLE MARSHALL,                    )
                                    )
            Petitioner,             )
                                    )
v.                                  )                No. 17-1272V
                                    )                Chief Special Master Dorsey
                                    )                ECF
SECRETARY OF HEALTH AND             )                SPU
HUMAN SERVICES,                     )
                                    )
            Respondent.             )
____________________________________)

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On September 15, 2017, petitioner, Nicole Marshall, filed a petition for compensation

under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”),

alleging that she developed a shoulder injury related to vaccine administration (“SIRVA”) as a

result of receiving an influenza (“flu”) vaccine on August 29, 2016. On June 15, 2018,

respondent filed a Rule 4(c) Report indicating that petitioner is entitled to compensation for

SIRVA. For the purposes of this proffer, the term “vaccine-related” is as described in

Respondent’s Rule 4(c) Report. On June 18, 2018, Chief Special Master Dorsey issued a Ruling

on Entitlement finding that petitioner is entitled to compensation for SIRVA.

I.     Items of Compensation

       A.      Pain and Suffering

       Respondent proffers that petitioner should be awarded $90,000.00 in 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

       Evidence supplied by petitioner documents her expenditure of past unreimbursable

expenses related to her SIRVA. Respondent proffers that petitioner should be awarded past

unreimbursable expenses in the amount of $5,470.95. Petitioner agrees.

       C.      Medicaid Lien

       Petitioner represents that there are no outstanding Medicaid liens against her.

II.    Form of the Award

       The parties recommend that the compensation provided to petitioner should be made

through a lump sum payment of $95,470.95 in the form of a check payable to petitioner.1 This

represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-

15(a). 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

                                              GABRIELLE M. FIELDING
                                              Assistant 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. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.

                                                -2-
                          s/ Justine Walters__________
                         JUSTINE WALTERS
                         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) 307-6393

DATE: November 9, 2018




                           -3-
