VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-00337 Package ID: USCOURTS-cofc-1_23-vv-00337 Petitioner: Gayle McKay Filed: 2023-03-08 Decided: 2024-08-16 Vaccine: influenza Vaccination date: 2021-08-18 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: compensated Award amount USD: 52500 AI-assisted case summary: Gayle McKay filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that she suffered a shoulder injury related to vaccine administration (SIRVA) resulting from an influenza vaccine received on August 18, 2021. She stated that the vaccine was administered in the United States, she suffered residual effects for more than six months, and no other civil action had been filed. The respondent conceded that Ms. McKay was entitled to compensation, agreeing that her injury was consistent with SIRVA as defined by the Vaccine Injury Table. The respondent confirmed that she had no prior shoulder issues, the pain occurred within 48 hours of the vaccination, and the pain and reduced range of motion were limited to the injection site. The respondent also agreed that she suffered residual effects for more than six months and met all legal prerequisites for compensation. Based on the respondent's concession and the evidence, the court found Ms. McKay entitled to compensation. Subsequently, a decision awarding damages was issued. The respondent proffered an award of $52,500.00 for pain and suffering, which Ms. McKay agreed to. The court awarded Ms. McKay a lump sum payment of $52,500.00. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_23-vv-00337-0 Date issued/filed: 2024-07-12 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/10/2024) regarding 27 Ruling on Entitlement. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-00337-UNJ Document 30 Filed 07/12/24 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0337V GAYLE MCKAY, Chief Special Master Corcoran Petitioner, Filed: June 10, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard Gage, Richard Gage, P.C. (WY), Cheyenne, WY, for Petitioner. Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On March 8, 2023, Gayle McKay 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 shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on August 18, 2021. Petition at 1. Petitioner further alleges that the flu vaccine was administered in the United States, she suffered the residual effects of her injury for more than six months, and neither Petitioner, nor anyone else to her knowledge, has filed, participated in, or collected an award or settlement from any civil action for her vaccine-related injury. Petition at ¶¶ 1, 8, 9. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:23-vv-00337-UNJ Document 30 Filed 07/12/24 Page 2 of 2 On June 7, 2024, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent agrees that Petitioner’s injury is consistent with SIRVA as defined by the Vaccine Injury Table in that “petitioner had no history of pain, inflammation, or dysfunction of her left shoulder prior to vaccination; pain occurred within forty-eight hours after receipt of an intramuscular vaccination; pain and reduced range of motion [were] limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain petitioner’s shoulder pain.” Id. at 5. Respondent further agrees that the records demonstrate that Petitioner suffered the residual effects of her condition for more than six months and has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_23-vv-00337-1 Date issued/filed: 2024-08-16 Pages: 4 Docket text: PUBLIC DECISION (Originally filed: 07/15/2024) regarding 32 DECISION Stipulation/Proffer. Signed by Chief Special Master Brian H. Corcoran. (tlf) Service on parties made. -------------------------------------------------------------------------------- Case 1:23-vv-00337-UNJ Document 38 Filed 08/16/24 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-0337V GAYLE MCKAY, Chief Special Master Corcoran Petitioner, Filed: July 15, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Richard Gage, Richard Gage, P.C. (WY), Cheyenne, WY, for Petitioner. Katherine Edwards, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On March 8, 2023, Gayle McKay 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 shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza (“flu”) vaccine received on August 18, 2021. Petition at 1. Petitioner further alleges that the flu vaccine was administered in the United States, she suffered the residual effects of her injury for more than six months, and neither Petitioner, nor anyone else to her knowledge, has filed, participated in, or collected an award or settlement from any civil action for her vaccine-related injury. Petition at ¶¶ 1, 8, 9. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 10, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On July 12, 2024, Respondent filed a proffer on award of 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). 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, 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:23-vv-00337-UNJ Document 38 Filed 08/16/24 Page 2 of 4 compensation (“Proffer”) indicating Petitioner should be awarded $52,500.00. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the 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 $52,500.00 (in pain and suffering) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of 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 Case 1:23-vv-00337-UNJ Document 38 Filed 08/16/24 Page 3 of 4 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS GAYLE MCKAY, Petitioner, v. No. 23-337 V Chief Special Master Brian H. Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On March 9, 2023, Gayle McKay (“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 she suffered a Table shoulder injury related to vaccine administration (“SIRVA”), as the result of an influenza (“flu”) vaccination received on August 18, 2021. Petition at 1. On June 7, 2024, 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 for a SIRVA Table injury, and on June 10, 2024, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 26; ECF No. 27. I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $52,500.00 in pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. Case 1:23-vv-00337-UNJ Document 38 Filed 08/16/24 Page 4 of 4 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 as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following1: a lump sum payment of $52,500.00, in the form of a check payable to petitioner. III. Summary of Recommended Payment Following Judgment Lump sum payable to petitioner, Gayle McKay: $52,500.00 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division TRACI R. PATTON Assistant Director Torts Branch, Civil Division s/ Katherine Edwards KATHERINE EDWARDS 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) 742-6374 Date: July 12, 2024 Katherine.Edwards2@usdoj.gov 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. 2