Gearhart v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 13-751V ************************* * VERNON GEARHART, * Filed: August 20, 2015 * Petitioner, * * Decision by Stipulation; Damages; v. * Influenza (“Flu”) Vaccine; * Guillain-Barré Syndrome (“GBS”) SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * ************************* Rachel E. Gusman, Graves, Barkett & McLain, PLLC, Tulsa, OK, for Petitioner.

Linda S. Renzi, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On September 27, 2015, Vernon Gearhart filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”).2 Petitioner alleges that he suffered from Guillain-Barré syndrome (“GBS”) as a result of his October 21, 2011, receipt of the influenza (“flu”) vaccine.

Respondent denies that Petitioner’s receipt of the flu vaccine caused him to suffer from GBS, any other injury, or his current condition. Nonetheless both parties, while maintaining their

Because this decision contains a reasoned explanation for my actions in this case, I will post it 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 (Dec. 17, 2002) (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. § 300aa- 12(d)(4)(B), however, the parties may object to the published decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public. Id. The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)). above-stated positions, agreed in a stipulation (filed August 20, 2015) that the issues before them could be settled, and that a decision should be entered awarding Petitioner compensation.

I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein.

The stipulation awards:  A lump sum of $481,468.48, which amount represents compensation for first year life care expenses ($51,147.49), lost earnings ($233,654.23), pain and suffering ($195,841.47), and past unreimbursable expenses ($825.29), in the form of a check payable to Petitioner; and  An amount sufficient to purchase the annuity contract described in paragraph ten of the attached stipulation, paid to the life insurance company from which the annuity will be purchased.

Stipulation ¶ 8. This amount represents compensation for all damages that would be available under Section 15(a) of the Act.

I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3

IT IS SO ORDERED.

/s/ Brian H. Corcoran Brian H. Corcoran Special Master

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review.