# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 1837 V

UNPUBLISHED

MARK MUELLER

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: December 20, 2019

Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Shoulder

Injury Related to Vaccine

Administration (SIRVA)

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY , for petitioner.

Sarah Christina Duncan , U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

On November 30, 2018

, Mark Mueller 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 he suffered a shoulder injury related to vaccine

administration ( “ SIRVA ” ) as a result of an influenza ( “ flu ” ) vaccination administered on

December 3, 2017

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

Unit of the Office of Special Masters.

On November 26, 2019

, a ruling on entitlement was issued , finding P etitioner

entitled to compensation for SIRVA . On December 17, 2019

, R espondent filed a p roffer

on a ward of compensation (“Proffer”) indicating P etitioner should be awarded

$ 90,651.33 ( consisting of $90,000.00 for pain an d suffering and $651.33 for past

unreimbursable e xpense s )

. Proffer at 3

. In the Prof fer, R espondent represented that

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am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 Ru le 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).2

P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find

that P etitioner is entitled to an award as stated in the Proffer.

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

sum payment of $ 90,651.33 (consisting of $90,000.00 fo r pain and suffering and

$651.33 for past unreimbursable ex p enses) in the form of a check payable to

P etitioner

. This amount represents compensation for all damages that w ould 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.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

MARK MUELLER

,

Petitioner,

v

.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Respondent. )

)

)

)

)

)

)

)

)

)

)

) No. 18

- 1837 V

Chief Special Master Corcoran

ECF

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On November 30, 2018, Mark Mueller (“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 he suffered a Shoulder Injury Related to Vacci ne

Administration (“SIRVA”), “including left shoulder adhesive capsulitis, tendinosis of the

supraspinatus and infraspinatus tendons, and articular and bursal sided fraying,” as a result of an

influenza (“ flu”) vaccine he received on December 3, 2017. Petition at 1. On November 26,

2019, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report

indicating that this case is appropriate for compensation under the terms of the Act, a nd the Chief

Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation the

same day. ECF No. 28; ECF No. 29.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that Mark Mueller should be awarded $ 90,0 00.00 in actual and

projected pain and suffering. This amount reflects that the award for projected pain and2

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 Mark Mueller ’s expenditure of past

unreimbursable expenses related to his vaccine

- related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $ 651.33, as

provided under the Vacc ine Act, 42 U.S.C. § 300aa

- 15(a)(1)(B). 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 Mark Mueller should be made

thro ugh a lump sum payment as described below and requests that the Chief Special Master’s

decision and the Court’s judgment award the following 1 : a lump sum payment of $90,651.33

,

representing compensation for pain and suffering ($ 90,000.00 ), and past unreim bursable

expenses ($651.33), in the form of a check payable to petitioner, Mark Mueller

.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Mark Mueller : $90,651.33

Respectfully submitted,

JOSEPH H. HUNT

Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting 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 lost earnings

and future pain and suffering.3 CATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

HEATHER L. PEARLMAN

Assistant Director

Torts Branch, Civil Division

s/ Sarah C. Duncan

SARAH C. DUNCAN

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) 514

- 9729

Fax: (202) 616

- 4310

DATED: December 17 , 201 9