# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15

- 0 206 V

Filed: June 30 , 2015

Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

CARIN ING

- MARIE MALKIN

, *

*

Petitioner, * Ruling on Entitlement; Concession;

* Influenza (“flu”) vaccine; Shoulder Injury

v. * Related to Vaccine Administration

* (“SIRVA”) ; Damages Decision Based

* on Proffer; Special Processing Unit

SECRETARY OF HEALTH * (“SPU”)

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Diana L. Sedar

, Maglio Christopher and Toale, Sarasota, FL

, for petitioner.

Ann D. Martin , U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

Vowell

, Chief Special Master:

On Mar ch 2 , 2015

, Carin Ing

- Marie Malkin filed a petition for compensation under

the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq

, 2 [ the

“Vaccine Act” or “Program”]. The petition alleges that as a result of a n Influenza (“ flu ”)

vaccination on September 30, 2013

, petitioner suffered a shoulder injury rel ated to

vaccine administration (“SIRVA”). Petition at 1. The case was assigned to the Special

Processing Unit (“SPU”) of the Office of Special Masters.

On June 30 , 2015

, respondent filed her Rule 4(c) R eport [“Res

. Report”], in which

she concedes that petitioner is entitled to compensation in this case. Res

. Report at 3

. Specifically, respondent “ has concluded that a preponderance of evidence establishes

1 Because this unpublished decision contains a reasoned explanation for the action in this case, it will be

posted on the United States Court of Federal Claims' website, in accordance with the E

- Government Act

of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501

note (2006)) . In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to

redact medical or other information, the disclosure o f 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. 9 9

- 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 (2006).that the injury to petitioner ’ s right shoulder was caused

- in

- fact by the administration of

her September 30, 2013, flu vaccine, and that [the] injury is not d ue to fa ctors unrelated

to [that] administration. ” Id

. R espondent “ r ecommends that compensation be a warded

under the terms of the Vaccine Act for petitioner ’ s right shoulder injury. ” Id

.

In view of respondent’s concession and the evidence before me, I find that

petitioner is entitle d to compensation

.

Additionally, respondent f iled a P roffer on A ward of C ompensation (“Proffer”)

detailing compensation for all elements of compensation to which petitioner would be

entitled under §15(a). According to respondent’s Proffer, petitioner agrees to the

proposed award of compensation.

Pursuant to the terms stated in the attached Proffer, I award petitioner a lump

sum payment of $ 7 0,000.00 in the form of a check payable to petitioner.

This amount represent s 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

s/Denise K. Vowe ll

Denise K. Vowell

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice

renouncing the right to seek review.

2IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

____________________________________ )

CARIN ING

- MARIE MALKIN, )

)

Petitioner, )

) No. 15

- 206V

v. ) Chief Special Master Vowell

) ECF

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

Respondent. )

____________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded

$ 70 ,000.00, which represents all elements of compensation to which petitioner would be entitled

under 42 U.S.C. § 300aa

- 15(a). 1 Petitioner agrees.

II. Form of the Award

The parties recommend that the comp ensation provided to petitioner should be made

through a lump sum payment of $ 70 ,000.00 in the form of a check payable to petitioner.

Petitioner agrees.

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorne y General

RUPA BHATTACHARYYA

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

e xpenses , future lost earnings, and future pain and suffering

.2 VINCENT J. MATANOSKI

Deputy Director

Torts Branch, Civil Division

GLENN A. MACLEOD

Senior Trial Counsel

Torts Branch, Civil Division

s/ ANN D. MARTIN

ANN D. MARTIN

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) 307

- 1815

DATED: June 30

, 2015