Rodriguez v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1464V UNPUBLISHED

HUMBERTO RODRIGUEZ, Chief Special Master Corcoran

Petitioner, Filed: September 7, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain- Barre Syndrome (GBS) Respondent.

Russell Berkowitz, Berkowitz and Hanna LLC, Shelton, CT, for Petitioner.

Dhairya Divyakant Jani, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On October 26, 2020, Humberto Rodriguez 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 Barre Syndrome (“GBS”) as a result of an influenza vaccine received on February 20, 2018. Petition at 1. Petitioner further alleges the vaccine was administered in the United States, he suffered the residual effects and complications of GBS for more than six months, and neither Petitioner nor any other party has ever filed an action or received compensation in the form of an award or settlement for his vaccine-related injury. Petition at ¶¶ 2, 22-24. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 16, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for GBS. On September 7, 2022, Respondent filed a proffer on 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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 (2012). award of compensation (“Proffer”) indicating Petitioner should be awarded $205,873.71. Proffer at 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 $205,873.71 (comprised of $202,500.00 in pain and suffering and $3,373.71 in past unreimbursable 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

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

***************************** HUMBERTO RODRIGUEZ, * * Petitioner, * * v. * No. 20-1464V (ECF) * CHIEF SPECIAL MASTER * BRIAN H. CORCORAN SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * *****************************

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On October 26, 2020, Humberto Rodriguez (“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”), as amended. Petitioner alleged that he suffered Guillain-Barré

syndrome as a result of an influenza vaccine administered on February 20, 2018. Petition at 1.

On February 14, 2022, the Secretary of Health and Human Services (“respondent”) filed a

Vaccine Rule 4(c) report recommending that compensation be awarded, and on February 16,

2022, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to

compensation. ECF No. 17; ECF No. 18.

I. Items of Compensation

A. Pain and Suffering

Respondent proffers that petitioner should be awarded $202,500.00 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 $3,373.71. 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 judgment award the following 1: a lump sum payment of $205,873.71, in the form of

a check payable to petitioner.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Humberto Rodriguez: $205,873.71

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 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 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

/s/ DHAIRYA D. JANI DHAIRYA D. JANI 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) 616-4356 Email: Dhairya.Jani@usdoj.gov Dated: September 7, 2022