Cousens v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-485V
UNPUBLISHED
KEITH COUSENS, Chief Special Master Corcoran
Petitioner, Filed: November 6, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On April 2, 2019, Keith Cousens 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 Guillain-Barré Syndrome (“GBS”) as a
result of his influenza (“flu”) vaccine received him on September 23, 2017. Petition at 1-
4. The case was assigned to the Special Processing Unit of the Office of Special Masters.
On May 20, 2020, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for GBS. On November 4, 2020, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $139,825.98. The
award is comprised of the following: $122,500.00 for pain and suffering; $3,866.49 for
past unreimbursable out of pocket medical expenses; $995.05 for future unreimbursable
medical expenses; and $12,464.44 for lost earnings.. Proffer at 1-2. 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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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).
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 $139,825.98 (comprised of $122,500.00 for pain and suffering,
$3,866.49 for past unreimbursable out of pocket medical expenses, $995.05 for
future unreimbursable medical expenses, and $12,464.44 for lost 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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KEITH COUSENS, )
)
Petitioner, )
v. ) No. 19-485V
) Chief Special Master Corcoran
SECRETARY OF HEALTH AND HUMAN ) ECF
SERVICES, ) SPU
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
Keith Cousens (“petitioner”) filed a petitioner for compensation on April 2, 2019,
alleging that he suffered Guillain-Barré Syndrome (“GBS”) due to an influenza (“flu”) vaccine
administered to him on September 23, 2017. On May 18, 2020, respondent conceded that
entitlement to compensation was appropriate under the terms of the Vaccine Act. The Chief
Special Master issued a Ruling on Entitlement on May 20, 2020, finding that petitioner was
entitled to vaccine compensation for his GBS.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$139,825.98. The award is comprised of the following: $122,500.00 for pain and suffering;
$3,866.49 for past unreimbursable out of pocket medical expenses; $995.05 for future
unreimbursable medical expenses; and $12,464.44 for lost earnings. This amount represents all
elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).
Petitioner agrees.
1
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made through
a lump sum payment of $139,825.98, in the form of a check payable to petitioner. 1 Petitioner
agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case
Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
s/Traci R. Patton
TRACI R. PATTON
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Ben Franklin Station
Washington, DC 20044-0146
Tel: (202) 353-1589
Dated: November 4, 2020
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