Keith v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1771V

MICHELLE KEITH, Chief Special Master Corcoran Petitioner, Filed: August 19, 2024 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Catherine Wallace Costigan, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.

Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1 On October 10, 2023, Michelle Keith 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-Barre Syndrome (“GBS”) following an influenza vaccination she received on October 12, 2021. Petition at ¶¶ 1, 11.

The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 14, 2024, a ruling on entitlement was issued, finding Petitioner entitled to compensation for her GBS. On August 16, 2024, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $93,309.17, comprised of $93,000.00 for pain and suffering and $309.17 for past unreimbursed expenses. Proffer at 1-2. 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 $93,309.17, comprised of $93,000.00 for pain and suffering and $309.17 for past unreimbursed 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

MICHELLE KEITH, Petitioner, No. 23-1771V v. Chief Special Master Corcoran ECF SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION 1 On October 10, 2023, Michelle Keith (“petitioner”) filed a petition for compensation (“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to - 34, as amended. She alleges that, as a result of receiving an influenza vaccine on October 12, 2021, she sustained injuries, including Guillain-Barré Syndrome (“GBS”). See Petition. On June 12, 2024, respondent filed his Vaccine Rule 4(c) report, concluding that petitioner suffered GBS as defined by the Vaccine Injury Table, within the Table timeframe, and with no apparent alternative cause. ECF No. 20. On June 14, 2024, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for a GBS Table injury. ECF No. 23.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $93,000.00 in pain and suffering.

This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued.

See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimburseable Expenses Evidence supplied by petitioner documents that she incurred past unreimbursable expenses related to her vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $309.17. See 42 U.S.C. § 300aa- 15(a)(1)(B). Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

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 judgment2,3 award the following: A lump sum payment of $93,309.17 in the form of a check payable to petitioner Petitioner agrees.

Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief.

The entry of judgment awarding the compensation described herein in a Decision of the Chief Special Master, resolves any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or hereafter could be timely brought against the United States and the Secretary of Health and Human Services in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., (a) on account of, or in any way growing out of any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner that resulted from, or that may be alleged to have resulted from, the vaccinations identified herein, and (b) that petitioner has had, now has, or hereafter may have with respect to the injury that gave rise to the petition for vaccine compensation filed in the United States Court of Federal Claims as petition No. 23-1771V.

III. Summary of Recommended Payments Following Judgment Lump sum payable to petitioner, Michelle Keith: $93,309.17 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 VORIS E. JOHNSON, JR. Assistant Director Torts Branch, Civil Division s/Katherine C. Esposito Katherine C. Esposito 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) 305-3774 [email protected] Dated: August 16, 2024