Creely v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: May 6, 2022

* * * * * * * * * * * * * UNPUBLISHED THOMAS CREELY, * * No. 18-1434V Petitioner, * v. * Special Master Gowen * SECRETARY OF HEALTH * Decision on Damages; Influenza AND HUMAN SERVICES, * (“Flu”) Vaccine; Guillain-Barre * Syndrome (“GBS”).

Respondent. * * * * * * * * * * * * * * Renee Ja Gentry, The Law Office of Renee J. Gentry, Washington, DC, for petitioner.

Tyler King, U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON DAMAGES 1 On September 20, 2018, Thomas Creely (“petitioner”) filed a petitioner for compensation in the National Vaccine Injury Compensation Program. 2 Petition (ECF No. 1). Petitioner alleged that he suffered from Guillain-Barre Syndrome (“GBS”) as a result of receiving an influenza (“flu”) vaccination on February 2, 2017. Id. at Preamble. On November 21, 2019, respondent filed his Rule 4(c) report in which he conceded that Petitioner is entitled to compensation. (ECF No. 31). On November 25, 2019, a Ruling on Entitlement was issued, finding that petitioner had established that he suffered a Table GBS and was entitled to compensation. See Creely v. Sec'y of Health & Hum. Servs., No. 18-1434V, 2019 WL 7482161, at *1 (Fed. Cl. Nov. 25, 2019) (ECF No. 32). The case entered the damages phase the same day. (ECF No. 33).

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website without any changes. Id. The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended 42 U.S.C. §§ 300aa-10 to 34 (2012) (hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.

The case was in the damages phase for over two years, and on March 18, 2022, petitioner filed a status report indicating that Mr. Creely was unable to participate in a damages hearing and instead requested a briefing schedule on the determination of pain and suffering, as the parties had come to an agreement on a life care plan. Status Report, March 18, 2022 (ECF No. 90).

Petitioner filed a memorandum the same day, and respondent submitted his response on April 4, 2022. (ECF Nos. 91, 93). On April 27, 2022, I issued a Ruling on Damages, finding that petitioner should receive an award for past pain and suffering in the amount of $250,000.00, and ordered respondent to file a proffer consistent with the ruling, along with the other agreed upon terms from the life care plan. Ruling on Damages (ECF No. 94).

On May 5, 2022, respondent filed a Proffer on an award of compensation, which indicates petitioner’s agreement to compensation on the terms set forth therein. Proffer (ECF No. 97). I have reviewed the Proffer and do award damages in accord with it. The Proffer is incorporated herein and made part of hereof as Appendix A. Based on the record as a whole, I find that petitioner is entitled to an award as stated in the Proffer.

Consistent with the terms of the Proffer, the undersigned awards the following in compensation: (A) A lump sum payment of $329,316.56 ($250,000.00 representing compensation for past pain and suffering and $79,316.56 representing compensation for year one (1) of life care plan expenses) in the form of a check payable to petitioner, Thomas Creely; (B) An amount sufficient to purchase the annuity contract described in section II.B. of the proffer.

This amount accounts for all elements of compensation under 42 U.S.C. §300aa-15(a).

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

Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a).