Russell v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-2064V

MICHELLE RUSSELL, as executor of Chief Special Master Corcoran the Estate of BARBARA PLUMMER,

Petitioner, Filed: November 27, 2024 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON DAMAGES1

On December 1, 2023, Michelle Russell, as executor of the estate of Barbara Plummer, filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.1 (the “Vaccine Act”). Petitioner alleges that as a result of an influenza (“flu”) vaccine which Ms. Plummer received on September 26, 2022, Ms. Plummer suffered from Guillain-Barré syndrome (“GBS”), which caused or contributed to her death on April 1, 2023. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 30, 2024, a Ruling on Entitlement was issued, finding Petitioner entitled to compensation for GBS corresponding to a listing on the Vaccine Injury Table, 42 C.F.R. §§ 100.3(a)(XIV)(D), (c)(15)).

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 . On November 26, 2024, Respondent filed the attached proffer. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein.

Pursuant to the terms stated in the attached proffer, I award a lump sum of $465,264.00 (including $200,000.00 representative of pain and suffering, $250,000.00 for the death benefit, and $15,264.00 representative of unreimbursable expenses) in the form of a check payable to Petitioner. Proffer at 2. This amount represents compensation for all damages that would be available under Section 15(a). Id.

The Clerk of Court is directed to enter judgment in accordance with this decision. 2

IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

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

MICHELLE RUSSELL, as executor of the Estate of BARBARA PLUMMER,

Petitioner, No. 23-2064V v. Chief Special Master Brian H. Corcoran

PROFFER ON AWARD OF COMPENSATION1

I. Procedural History

On December 1, 2023, Michelle Russell (“petitioner”), as executor of the Estate of

Barbara Plummer (“Ms. Plummer”), filed a petition for compensation (“Petition”) under the

National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 et seq.

(“Vaccine Act” or “the Act”). See generally Petition. Petitioner alleges that Ms. Plummer

suffered Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine

administered on September 26, 2022, which resulted in her death on April 1, 2023. Id. On

August 29, 2024, respondent filed his Vaccine Rule 4(c) report, recommending that the Court

find that Ms. Plummer suffered GBS as defined by the Vaccine Injury Table, within the Table

timeframe, and that Ms. Plummer’s death from GBS satisfied the severity requirement. On

August 30, 2024, Chief Special Master Brian H. Corcoran issued a ruling on entitlement, finding

that petitioner was entitled to compensation for a GBS Table injury.

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

Based upon the evidence of record, respondent proffers that petitioner should be awarded

a lump sum of $465,264.00, for all damages, including $200,000.00 representative of pain and

suffering; $250,000.00 for the death benefit; and $15,264.00 representative of unreimbursable

medical expenses. This amount represents all elements of compensation to which petitioner is

entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

III. Form of the Award

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: A lump sum payment of $465,264.00 in

the form of a check payable to petitioner. Petitioner agrees.

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

LARA A. ENGLUND Assistant Director Torts Branch, Civil Division /s/ Rachelle P. Bishop RACHELLE P. BISHOP Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 (202) 616-3662 Rachelle.P.Bishop@usdoj.gov Dated: November 26, 2024