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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1440V
UNPUBLISHED
RICHARD MISZEWSKI, Chief Special Master Corcoran
Petitioner, Filed: March 23, 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.
Phillip S. Georges, Phillip S. Georges, PLLC, Nashville, TN, for Petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES 1
On October 22, 2020, Richard Miszewski 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 Guillain-Barre Syndrome (“GBS”)
as a result of an influenza (“flu”) vaccine he received on January 22, 2019. Petition at 1.
The case was assigned to the Special Processing Unit of the Office of Special Masters.
On March 22, 2022, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for his GBS. On March 22, 2022, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded $115,000.00 in pain
and suffering. 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.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2National 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).
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $115,000.000, consisting of 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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
RICHARD MISZEWSKI, )
)
)
Petitioner, ) No. 20-1440V
) Chief Special Master Corcoran
v. ) ECF
)
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 22, 2020, Richard Miszewski filed a petition for compensation under the
National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or
“Act”), alleging that he suffered Guillain-Barre Syndrome (“GBS”), as defined in the Vaccine
Injury Table, following administration of an influenza vaccine he received on January 22, 2018.
Petition at Introduction. On March 21, 2022, the Secretary of Health and Human Services
(“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate for compensation
under the terms of the Act for a GBS Table injury. ECF 21. On March 22, 2022, the Chief
Special Master issued a Ruling on Entitlement finding that petitioner was entitled to
compensation. ECF 23.
I. Item of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$115,000.00, consisting of pain and suffering, which represents all elements of compensation to
which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
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II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
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 1: a lump sum payment of $115,000.00, in the form of
a check payable to petitioner.
III. Summary of Recommended Payment Following Judgment
Lump sum payable to petitioner, Richard Miszewski: $115,000.00
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
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
/s/ Colleen C. Hartley
COLLEEN C. HARTLEY
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-3644
Email: colleen.hartley@usdoj.gov
DATED: March 22, 2022
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