Trimble v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: July 22, 2021 * * * * * * * * * * * * * MARK TRIMBLE, * Unpublished

* *

Petitioner, * No. 20-621V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Decision on Damages; AND HUMAN SERVICES, * Influenza (“Flu”); Guillain-Barré

* Syndrome (“GBS”).

Respondent. *

* * * * * * * * * * * * * Nathaniel Enos, Conway, Homer, P.C., Boston, MA, for petitioner.

Kyle E. Pozza, U.S. Department of Justice, Washington, D.C., for respondent.

DECISION AWARDING DAMAGES1

On May 19, 2020, Mark Trimble (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that he suffered from Guillain-Barré syndrome (“GBS”) as a result of receiving an influenza (“flu”) and tetanus- diphtheria-acellular-pertussis (“Tdap”) vaccine administered on November 10, 2017. Petition at Preamble (ECF No. 1). I issued a Ruling on Entitlement, finding that petitioner was entitled to compensation. See Ruling on Entitlement (ECF No. 26).

On July 22, 2021, respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner should be awarded $176,803.06, representing $165,000.00 in past pain and suffering, $6,953.06 in unreimbursed past expenses, and $4,850.00 in future medical costs. Proffer at 1-2 (ECF No. 36). 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 the following: A lump sum of $176,803.06, in the form of a check payable to petitioner. This amount represents $165,000.00 for pain and suffering, $6,953.06 for past unreimbursed expenses, and $4,850.00 for future medical expenses. This amount represents all elements of compensation to which petitioner would be available under 42 U.S.C. § 300aa-15(a).

I adopt respondent’s proffer attached to this decision, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court is directed to enter judgment in accordance with this decision.3

IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS ____________________________________

) MARK TRIMBLE, ) No. 20-621V

) Special Master Gowen Petitioner, )

) v. )

) SECRETARY OF HEALTH AND ) HUMAN SERVICES, )

) Respondent. )

) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On January 8, 2021, respondent conceded that entitlement to compensation was appropriate under the terms of the Vaccine Act. On February 4, 2021, Special Master Gowen issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine compensation for his Guillain-Barré syndrome (“GBS”) and related sequela.

I. Amount of Compensation

Respondent now proffers that, based on the Special Master’s entitlement decision and the evidence of record, petitioner should be awarded $176,803.06. The award is comprised of the following: $165,000.00 for pain and suffering, $6,953.06 for past unreimbursed expenses, and $4,850.00 for future medical expenses. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II. Form of the Award The parties recommend that the compensation provided to petitioner should be made as described below, and request that the Special Master’s damages decision and the Court’s judgment award the following: 1

A. Petitioner’s Damages

Respondent recommends that the compensation provided to petitioner should be made through: a lump sum of $176,803.06, in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

Petitioner agrees.

B. Guardianship

Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respectfully submitted, BRIAN M. BOYNTON Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division DARRYL R. WISHARD Assistant 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 expenses, future pain and suffering, and future lost wages.

/s/ Kyle E. Pozza_____________ KYLE E. POZZA 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) 616-3661 E-mail: [email protected]

Dated: July 22, 2021