Hess v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-1031V
UNPUBLISHED
CHARLES HESS, Chief Special Master Corcoran
Petitioner, Filed: March 10, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Timothy James Lessman, Knutson & Casey Law Firm, Mankato, MN, for Petitioner.
Joseph Adam Lewis, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On March 5, 2021, Charles Hess 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 Barre Syndrome (“GBS”) as a
result of an influenza vaccine received on September 21, 2018. Petition at 1. Petitioner
further alleges that he received the vaccine in the United States, suffered the residual
effects or complications of his illness for more than six months, and has never received
compensation or filed a civil action for his vaccine-related injuries. Petition at 1, ¶¶ 18-19.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On January 10, 2022, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for GBS. On March 10, 2022, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $95,000.00. Proffer at
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
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.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $95,000.00 (representative of past pain and suffering) in the form
of a check payable to Petitioner. This amount represents compensation for all damages
that would be available under Section 15(a).
The Clerk of 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
___________________________________
)
CHARLES HESS, )
)
Petitioner, ) No. 21-1031V ECF
)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
___________________________________ )
PROFFER ON AWARD OF COMPENSATION 1
I. Procedural History
On March 5, 2021, Charles Hess (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, as amended (“the Vaccine Act” or “the
Act”), 42 U.S.C. §§ 300aa-1 to -34. Petitioner alleges that he developed Guillain-Barré
Syndrome (“GBS”) within the Vaccine Injury Table timeframe following the receipt of an
influenza (“flu”) vaccine administered to him on September 21, 2018. Petition at 1. On January
6, 2022, respondent filed his Vaccine Rule 4(c) Report, concluding that petitioner suffered GBS
as defined by the Vaccine Injury Table, within the Table timeframe. ECF No. 23. On January
10, 2022, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner
was entitled to compensation for a GBS Table injury. ECF No. 24.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
1 This Proffer does not include attorneys’ fees and costs, which the parties intend to
address after the Damages Decision is issued.
a lump sum of $95,000.00 for all damages, representative of past pain and suffering. This
amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. §
300aa-15(a). Petitioner agrees.
III. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment, as described below, and requests that the Chief Special Master’s
decision and the Court’s judgment award the following: A lump sum payment of $95,000.00 in
the form of a check payable to petitioner.2 Petitioner agrees.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
2 Should petitioner die prior to entry of judgment, respondent would oppose any award
for future medical expenses, future lost earnings, and future pain and suffering, and the parties
reserve the right to move the Court for appropriate relief.
2
s/ Joseph A. Lewis
JOSEPH A. LEWIS
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) 451-7495
E: joseph.a.lewis@usdoj.gov
DATED: March 10, 2022
3