Schaefer v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-152V Filed: November 7, 2017 Not for Publication

************************************* DENNIS SCHAEFER, * * Petitioner, * Damages decision based on * proffer; Guillain-Barré syndrome v. * (“GBS”); influenza (“flu”) vaccine * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Jeffrey S. Pop, Beverly Hills, CA, for petitioner. Claudia B. Gangi, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION AWARDING DAMAGES 1

On January 31, 2017, petitioner filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012), alleging that he suffered Guillain-Barré syndrome (“GBS”) as a result of the influenza (“flu”) vaccination he received on September 22, 2015. Respondent stated in his Rule 4(c) Report filed on August 30, 2017 that he does not contest entitlement in this case.

On November 7, 2017, respondent filed Respondent’s Proffer on Award of Compensation. The undersigned finds the terms of the proffer to be reasonable. Based on the

1 Because this decision contains a reasoned explanation for the special master's action in this case, the special master intends to post this decision on the United States Court of Federal Claims's website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact such information prior to the document=s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall redact such material from public access. record as a whole, the undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to the terms stated in the attached proffer, the court awards a lump sum payment of $401,347.45, representing compensation for lost earnings ($176,347.45) and pain and suffering ($225,000.00), representing all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). The award shall be in the form of a check for $401,347.45 made payable to petitioner, Dennis Schaefer.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: November 7, 2017 /s/ Laura D. Millman Laura D. Millman Special Master

2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

_________________________________________ ) DENNIS SCHAEFER, ) ) Petitioner, ) ) No. 17-152V v. ) Special Master Millman ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) __________________________________________)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

A. Lost Earnings

The parties agree that based upon the evidence of record, Dennis Schaefer has suffered a

past loss of earnings as a result of his vaccine-related injury, and will suffer loss of earnings in

the future. Therefore, respondent proffers that the Court should award Dennis Schaefer a lump

sum of $176,347.45 for his lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-

15(a)(3)(A). Petitioner agrees.

B. Pain and Suffering

Respondent proffers that the Court should award Dennis Schaefer a lump sum of

$225,000.00 for his actual and projected pain and suffering. This amount reflects that the award

for projected pain and suffering has been reduced to net present value. See § 300aa-15(a)(4).

Petitioner agrees. II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made

through a lump sum payment as described below and request that the Special Master’s decision

and the Court’s judgment award the following1: a lump sum payment of $401,347.45,

representing compensation for lost earnings ($176,347.45), and pain and suffering

($225,000.00), in the form of a check payable to petitioner, Dennis Schaefer.

III. Summary of Recommended Payment Following Judgment

Lump sum payable to petitioner: $401,347.45

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

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

CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division

GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division

1 Should petitioner predecease entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future pain and suffering and future loss of earnings. /s/ Claudia B. Gangi CLAUDIA B. GANGI Senior 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) 616-4138

Dated: November 7, 2017