Dave v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-565V
UNPUBLISHED
ASHISH DAVE, Chief Special Master Corcoran
Petitioner, Filed: May 13, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Meningococcal Vaccine; Vasovagal
Syncope
Respondent.
Sean Franks Greenwood, Greenwood Law Firm, Houston, TX, for petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On April 16, 2019, Ashish Dave 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 an episode of vasovagal syncope as a result
of a meningococcal vaccine administered on June 26, 2018. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On November 25, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation. On May 13, 2021, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $62,738.58. 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.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $62,738.58 (representing compensation in the amount of
$40,000.00 for pain and suffering; $6,642.31 for unreimbursed, out-of-pocket
medical expenses; $525.00 for lost wages; and $15,571.27 in future medical care)
in the form of a check payable to Petitioner. This amount represents compensation for
all damages that would be available under § 15(a).
The clerk of the 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.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
ASHISH DAVE,
Petitioner,
Case No. 19-565V (ECF)
v. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Procedural History
On November 24, 2019, respondent filed a Vaccine Rule 4(c) report concluding
that Ashish Dave (“petitioner”) suffered an injury that is compensable under the National
Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34 (“the
Act”). Accordingly, on November 25, 2019, the Chief Special Master issued a Ruling on
Entitlement, finding that petitioner was entitled to compensation under the Act.
II. Items of Compensation and Form of the Award
Based upon the evidence of record, respondent proffers that petitioner should be
awarded $62,738.58. The award is comprised of the following: $40,000.00 for pain and
suffering; $6,642.31 for unreimbursed, out-of-pocket medical expenses; $525.00 for lost
wages; and $15,571.27 in future medical care. This amount represents all elements of
compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a)
regarding his June 26, 2018, meningococcal vaccination. Petitioner agrees.1
III. Form of the Award
The parties recommend that compensation provided to petitioner should be made
through a lump sum payment of $62,738.58, in the form of a check payable to petitioner.
Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this
case.
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Acting Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant 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 medical expenses, future lost earnings, and future pain and suffering.
2
s/ Mark K. Hellie
MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
T: (202) 616-4208
E: mark.hellie@usdoj.gov
DATED: May 13, 2021
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