In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 16-0877V 

Filed: September 29, 2016 

UNPUBLISHED 

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

MARION KITTY, * 

 * 

 Petitioner, * Damages Decision Based on Proffer; 

v. * Influenza (“Flu”) Vaccine; Shoulder 

 * Injury Related to Vaccine Administration 

SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit 

AND HUMAN SERVICES, * (“SPU”) 

 * 

 Respondent. * 

 * 

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

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. 

Darry R. Wishard, U.S. Department of Justice, Washington, DC, for respondent. 

DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master: 

 On July 25, 2016, Marion Kitty (“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 an injury to her right 

shoulder as a result of an influenza (“flu”) vaccine she received on October 2, 2015. 

Petition at 1. The case was assigned to the Special Processing Unit of the Office of 

Special Masters. 

On August 26, 2016, a ruling on entitlement was issued, finding petitioner entitled 

to compensation for SIRVA. On September 29, 2016, respondent filed a proffer on 

award of compensation (“Proffer”) indicating petitioner should be awarded $100,450.87. 

Proffer at 1. In the Proffer, respondent represented that petitioner agrees with the 

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends 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). 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. 

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). 
2

proffered award. Based on the record as a whole, the undersigned finds that petitioner 

is entitled to an award as stated in the Proffer. 

 Pursuant to the terms stated in the attached Proffer, the undersigned awards 

petitioner a lump sum payment of $100,450.87, in the form of a check payable to 

petitioner, Marion Kitty. This amount represents compensation for all damages that 

would be available under § 300aa-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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

___________________________________

)

MARION KITTY, )

)

 Petitioner, ) No. 16-877V ECF

) 

 v. ) Chief Special Master Dorsey 

 )

SECRETARY OF HEALTH ) 

AND HUMAN SERVICES, )

)

 Respondent. )

___________________________________ ) 

PROFFER ON AWARD OF COMPENSATION1

I. Procedural History

On July 25, 2016, Marion Kitty (“petitioner”) filed a petition for compensation 

(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34, as amended. She alleges that, as a result of receiving the influenza (“flu”) vaccine on 

October 2, 2015, she suffered a right shoulder injury. Petition at 1-3. 

On August 26, 2016, respondent filed her Vaccine Rule 4(c) report, conceding causationin-fact for petitioner’s shoulder injury related to vaccine administration (“SIRVA”). On that 

same day, the Chief Special Master issued a ruling on entitlement, finding that petitioner was 

entitled to compensation for SIRVA. 

II. Items of Compensation

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

$100,450.87, which represents all elements of compensation to which petitioner would be 

 1

 This Proffer does not include attorneys’ fees and costs, which the parties intend to 

discuss after the Damages Decision is issued. 
2

entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

III. Form of the Award

Respondent recommends that the compensation provided to petitioner should be made 

through a lump sum payment of $100,450.87, in the form of a check payable to petitioner.

2

 

Petitioner agrees.

Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Acting Deputy Director

Torts Branch, Civil Division

GLENN A. MACLEOD

Senior Trial Counsel

Torts Branch, Civil Division

/s/Darryl R. Wishard 

 DARRYL R. WISHARD

Senior Trial Attorney

Torts Branch, Civil Division

U. S. Department of Justice

P.O. Box l46, Benjamin Franklin Station

Washington, D.C. 20044-0146

Direct dial: (202) 616-4357

Dated: September 29, 2016 Fax: (202) 616-4310

 2

 Should petitioner die prior to entry of judgment, respondent would oppose any award 

for future medical expenses, future lost earnings, and future pain and suffering, and the parties 

reserve the right to move the Court for appropriate relief.