Pomeroy v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-104V

DUANE F. POMEROY, Chief Special Master Corcoran

Petitioner, Filed: October 4, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Anthony Louis DeWitt, Bartimus Frickleton Robertson Rader, P.C., Leawood, KS, for Petitioner.

Adam Nemeth Muffett, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On January 26, 2023, Duane F. Pomeroy 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 from Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccination administered to him on October 21, 2020. Pet., ECF No. 1. Petitioner further alleges that the vaccine was received in the United States, he suffered sequela of his injury for more than six months, and neither Petitioner nor any other party has ever received compensation in the form of an award or settlement for his vaccine-related injury. Id. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). On July 1, 2024, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for his GBS. ECF No. 28. On October 3, 2024, Respondent filed a Proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $127,500.00 in pain and suffering, $841.81 in past unreimbursable expenses, and $11,959.33 in lost wages. Proffer at 1-2, ECF No. 32. 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 $140,301.14 for pain and suffering, past unreimbursable expenses, and 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.

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

) DUANE F. POMEROY, ) ) Petitioner, ) ) No. 23-104V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On January 26, 2023, Duane F. Pomeroy (“petitioner”) filed a petition for compensation

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(“Vaccine Act” or “Act”), alleging that he suffered from Guillain-Barré Syndrome (“GBS”), as

the result of an influenza vaccine he received on October 21, 2020. Petition at 1. On June 28,

2024, 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, and on July 1, 2024, the Chief Special Master issued a Ruling on Entitlement

finding petitioner entitled to compensation. ECF Nos. 27, 28.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $127,500.00 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 $841.81. See 42 U.S.C. § 300aa-15(a)(1)(B).

Petitioner agrees.

C. Loss of Earnings

Evidence supplied by petitioner documents that he incurred past lost wages related to his

vaccine-related injury. Respondent proffers that petitioner should be awarded lost wages in the

amount of $11,959.33. See 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees.

The foregoing 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 judgment award the following1: a lump sum payment of $140,301.14 in the form

of a check payable to petitioner.

III. Summary of Recommended Payment Following Judgment

Lump sum payable to petitioner, Duane F. Pomeroy: $140,301.14

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 lost earnings and future pain and suffering. 2 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

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ Adam N. Muffett ADAM N. MUFFETT Trial Attorney U.S. Department of Justice Torts Branch, Civil Division P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-2895 Adam.muffett@usdoj.gov

Date: October 3, 2024