Napolitano v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1208V
Filed: October 16, 2018
UNPUBLISHED
MICHAEL NAPOLITANO,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Brenton Aaron Elswick, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On September 7, 2017, petitioner 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 an influenza (“flu”) vaccine he received on September 22, 2016. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On August 6, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation for his GBS injury. On October 12, 2018, respondent filed a proffer on
award of compensation (“Proffer”) indicating petitioner should be awarded $152,417.48,
including $150,000.00 in actual and projected pain and suffering and $2,417.48 in past
unreimbursable expenses. Proffer at 1-2. In the Proffer, respondent represented that
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National 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).
petitioner agrees with the proffered award. Based on the record as a whole, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $152,417.48 in the form of a check payable to
petitioner, Michael Napolitano. This amount represents compensation for all
damages that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
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
MICHAEL NAPOLITANO,
Petitioner, No. 17-1208V
v. Chief Special Master Dorsey
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
PROFFER ON AWARD OF DAMAGES
On September 7, 2017, Michael Napolitano (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34
(“Vaccine Act” or “Act”), as amended. Respondent conceded petitioner’s entitlement to compensation
in his Rule 4(c) Report filed on August 3, 2018. Based on Respondent’s Rule 4(c) Report the Chief
Special Master found petitioner entitled to compensation.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $150,000.00 in actual and projected pain
and suffering. This amount reflects that any award for projected pain and suffering has been reduced to
net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
B. Past Unreimbursable Expenses
Evidence supplied by petitioner documents his expenditure of past unreimbursable expenses
related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past
unreimbursable expenses in the amount of $2,417.48. Petitioner agrees.
1
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment of $152,417.48, in the form of a check made payable to petitioner. 1 This lump sum
payment represents all elements of compensation to which petitioner would be entitled under 42 U.S.C.
§ 300aa-15(a). Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
s/Jennifer L. Reynaud
JENNIFER L. REYNAUD
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) 305-1586
Date: October 12, 2018
1
Should petitioner die prior to the 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