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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-907V
UNPUBLISHED
BETH NEMECHEK, Chief Special Master Corcoran
Petitioner, Filed: January 27, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On July 5, 2017, Beth Nemechek 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 she suffered from Guillain Barre Syndrome caused
by an influenza (“flu”) vaccine administered on November 11, 2015. Petition at 2.
Petitioner further alleges that the vaccine was administered within the United States, that
she suffered the residual effects of her injury for more than six months, and that there has
not been an award or settlement from any civil action related to her injury. Petition at 2.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On March 29, 2018, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for GBS. On January 27, 2021, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $244,064.21
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
(comprised of $75,000.00 for actual and projected pain and suffering at net present value;
$1,862.21 for past unreimbursed expenses; and $167,202.00 for loss of earnings. Proffer
at 1. 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 $244,064.21 (comprised of $75,000.00 for actual and projected pain
and suffering at net present value; $1,862.21 for past unreimbursed expenses; and
$167,202.00 for loss of earnings) 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.
2
THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
BETH NEMECHEK,
Petitioner,
v. No. 17-907V
Chief Special Master Brian H. Corcoran
SECRETARY OF HEALTH AND ECF
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On March 29, 2018, the Court entered its “Ruling on Entitlement,” finding petitioner
entitled to compensation, consistent with the recommendation in respondent’s March 29, 2018
Rule 4(c) Report. Respondent now proffers that petitioner be awarded a lump sum of
$244,064.21 for all damages available pursuant to 42 U.S.C. § 300aa-15(a). Of this total
amount, $75,000.00 represents an award for actual and projected pain and suffering at net
present value; $1,862.21 represents an award for past unreimbursed expenses; and $167,202.00
represents an award for loss of earnings. Petitioner is a competent adult. Accordingly,
guardianship documentation is not required.
Petitioner agrees with the proffered award of $244,064.21.1
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
1
This proffer does not include any award for attorneys’ fees and costs that may be awarded
pursuant to 42 U.S.C. § 300aa-15(e).
1
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
s/ RYAN D. PYLES
RYAN D. PYLES
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-9847
Dated: January 27, 2021
2