Yanovsky v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-1306V

DAVID YANOVSKY, Chief Special Master Corcoran Petitioner, Filed: December 7, 2023 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Elizabeth Kyla Abramson, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner.

Ryan Pohlman Miller, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1 On September 15, 2022, David Yanovsky 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 he suffered Guillain-Barre Syndrome (GBS) resulting from an influenza (flu) vaccine he received on September 21, 2021. Petition at 1, 4-5. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 28, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for GBS. On December 7, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $256,691.70, including $190,000.00 in pain and suffering, $1,707.85 for past unreimbursable expenses, and $64,983.85 for past lost wages. Proffer at 1-2. In the Proffer, Respondent represented 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.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 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 $256,691.70, including $190,000.00 in pain and suffering, $1,707.85 for past unreimbursable expenses, and $64,983.85 for past lost wages 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

3 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

DAVID YANOVSKY, Petitioner, Case No. 22-1306V (SPU) v. Chief Special Master Corcoran SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION On September 15, 2022, David Yanovsky (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended, alleging that that he suffered Guillain-Barré Syndrome (“GBS”) as a result of an influenza (“flu”) vaccination administered to him on September 12, 2021.

See Petition (“Pet.”) at 1 (citing Exhibit (“Exh.”) 1 at 1). On September 5, 2023, the Secretary of Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation under the terms of the Act for a GBS Table injury, ECF No. 27, and on September 28, 2023, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 29.

I. Items of Compensation A. Pain and Suffering Respondent proffers that petitioner should be awarded $190,000.00 in pain and suffering.

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

B. Past Unreimbursable Expenses Evidence supplied by petitioner documents that he incurred past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $1,707.85. See 42 U.S.C. § 300aa-15(a)(1)(B).

Petitioner agrees.

C. Lost Wages Evidence supplied by petitioner documents that he incurred past lost wages related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past lost wages in the amount of $64,983.85. See 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

These amounts represent all elements of compensation to which petitioner is entitled under 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 judgment award the following:1 a lump sum payment of $256,691.70, in the form of a check payable to the petitioner.

III. Summary of Recommended Payments Following Judgment Lump sum payable to the petitioner, David Yanovsky: $256,691.70 Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief.

C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division COLLEEN C. HARTLEY Assistant Director Torts Branch, Civil Division /s/ Ryan Pohlman Miller RYAN POHLMAN MILLER Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 305-3027 Date: December 7, 2023 Email: [email protected]