Rosenthal v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0126V

ANNE ROSENTHAL, Chief Special Master Corcoran Petitioner, v. Filed: September 26, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On February 8, 2022, Anne Rosenthal 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 from Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine she received on September 19, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 29, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation. On September 25, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded a total of $122,377.03 (comprised of $117,500.00 for pain and suffering and $4,877.03 for unreimbursed out-of- pocket medical expenses). Proffer at 2. In the Proffer, Respondent represented that 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.

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).

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 $122,377.03 (comprised of $117,500.00 for pain and suffering and $4,877.03 for unreimbursed out-of-pocket medical expenses) 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

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

ANNE ROSENTHAL, Petitioner, Case No. 22-126V (ECF) v. CHIEF SPECIAL MASTER CORCORAN SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Procedural History On February 8, 2022, Anne Rosenthal (“petitioner”) filed a petition for compensation (“Pet.”) under the National Childhood Vaccine Injury Act of 1986, U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended. Petitioner alleges that she suffered from Guillain-Barré syndrome as a result of an influenza (“flu”) vaccine administered on September 19, 2019. Pet. at 1.

On November 28, 2022, respondent filed his Rule 4(c) Report, conceding entitlement in this case because petitioner met the criteria to establish a presumptive Table GBS injury. ECF Doc. No. 17 at 1, 5-6. On November 29, 2022, the Court issued its Ruling on Entitlement, finding that petitioner was entitled to compensation. ECF Doc.

No. 18.

II. Items of Compensation and Form of the Award Based upon the evidence of record, respondent proffers that petitioner should be awarded $122,377.03. The award is comprised of the following: $117,500.00 for pain and suffering and $4,877.03 for unreimbursed out-of-pocket medical expenses. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a) regarding her September 19, 2019, flu vaccination.

Petitioner agrees.1 III. Form of the Award The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $122,377.03, in the form of a check payable to petitioner. Petitioner agrees.

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

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

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 lost earnings, and future pain and suffering.

TRACI R. PATTON Assistant Director Torts Branch, Civil Division s/ Mark K. Hellie MARK K. HELLIE Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Benjamin Franklin Station Washington, D.C. 20044-0146 T: (202) 616-4208 E: [email protected] DATED: September 25, 2024