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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0963V
UNPUBLISHED
DENNIS CASHEL, Chief Special Master Corcoran
Petitioner, Filed: May 7, 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.
Robert H. Pedroli, Pedroli & Gauthier, LLC, Clayton, MO, for Petitioner.
Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On August 4, 2020, Dennis Cashel 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”) which
meets the definition for a Table GBS or, in the alternative, was caused-in-fact by the
influenza vaccine he received on September 24, 2018. Petition at ¶¶ 2, 23, 26. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On March 19, 2021, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for his GBS. On May 7, 2021, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioner should be awarded $140,464.00,
representing compensation in the amounts of $140,000.00 for pain and suffering and
$464.00 for unreimbursed expenses. Proffer at 1. In the Proffer, Respondent represented
1
Because this unpublished decision contains a reasoned explanation f or the action in this case, I am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 “§” ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
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 $140,464.00, representing compensation in the amounts of
$140,000.00 for pain and suffering and $464.00 for actual unreimbursable expenses
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 f il ing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
DENNIS CASHEL, )
)
Petitioner, )
) No. 20-963V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Procedural History
On August 4, 2020, Dennis Cashel (“petitioner”) 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 Barré Syndrome (“GBS”) as a result of an influenza
vaccine he received on September 24, 2018. Petition at 1-2. On March 9, 2021, 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. ECF No. 16.
II. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
a lump sum of $140,464.00 ($140,000.00 for pain and suffering and $464.00 for unreimbursed
expenses) for all damages in this case. This amount represents all elements of compensation to
which petitioner would be 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 of $140,464.00, 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,
BRIAN M. BOYNTON
Acting Assistant Attorney General
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/ Zoë Wade
ZOË WADE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-4118
Fax: (202) 616-4310
Email: zoe.wade@usdoj.gov
Dated, May 7, 2021.
1
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