# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 266 V

UNPUBLISHED

EARL J. SMITH

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: June 2, 2020

Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Influenza (Flu) Vaccine; Guillain

Barre Syndrome (GBS)

Scott B. Taylor, Urban & Taylor, S.C., Milwaukee, WI , for petitioner.

Lisa Ann Watts , U.S. Department of Justice, Washington, DC, for R espondent.

DECISION AWARDING DAMAGES 1

On February 19, 2019

, Earl J. Smith 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 administered on June 15, 2009

. Petition at 1 3 . The case was assigned to the Special Processing Unit of the Office of

Special Masters.

On May 19, 2020

, a ruling on entitlement was issued , finding P etitioner entitled to

compensation for GBS . On May 27, 2020

, R espondent filed a p roffer on a ward of

compensation (“Proffer”) indicating P etitioner should be awarded $ 197,500.00 for pas t

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 o f 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).

3 Petitioner is not time

- barred from alleging a Table injury of GBS because the petition was fil ed within the

look

- ba ck provision

. See § 16(b).2 and future pain and suffering

. Proffer at 1

. In the Proffer, R espondent represented that

P etitioner agrees with the proffered award. Id. Based on the record as a whole, I find

that P etitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award P etitioner a lump

sum payment of $ 197,500.00 in the form of a check payable to P etitioner

. This

amount represents compensation for all damages that w ould be available under § 15 (a)

.

The clerk of the court is directed to enter judgment in accordance with this

decision. 4

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

4 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.1 IN THE UNITED STATES COURT OF FED ERAL CLAIMS

OFFICE OF SPECIAL MASTERS

EARL J. SMITH,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. No. 19

- 266V

Chief Special Master Corcoran

ECF

RESPONDENT’ S PROFFER ON AWARD OF COMPENSATION

On February 19, 2019, Earl J. Smith (“petitioner”) filed a petition for vaccine injury

compensation alleging that he developed Guillain

- Barré syndrome (“GBS”)

, a Tab le injury, as a

result of an influenza (“flu” ) vaccine administered to him on June 15, 2009. 1 Respondent filed his

Rule 4(c) Report conceding entitl eme n t to compensation on May 19, 2020, and the Court issued a

Ru ling on Entitle me nt that same day

.

I. Items of Compensation

Based upon the evidence of record, respondent proffers that petitioner should be awarded

a total of $ 197,500.00 f or his past and future pain and suffering . This represents all elements of

compensation to which petitioner would be entitled under 42 U.S.C. § 300aa

- 15(a)

. 2 Petitioner

1 Petitioner is not time

- barred from alleging a Table injury of GBS under 42 U.S.C

§ 300aa

– 16(a)(2), because his petition was filed not later than two years after the effective date of

the Table revision ad ding GBS as a Table injury following flu vaccine (March 21, 2017), and the

alleged injury occurred not more than eight years prior to the effective date of the Table revision.

See 42 U.S.C. § 300aa

– 16(b).

2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court

for appropriate relief. In particular, respondent would oppo se any award for future damages

.2 agrees.

II. Form of the Award

The parties recommend that the com pensation provided to petitioner should be made

through a lu mp sum payment of $197,500.00 in the form of a check payable to petitioner. 3

Petitioner agrees.

Resp ectfully 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

ALEXIS B. BABCOCK

Assistant Director

Torts Branch, Civil Division

s/Lisa A. Watts

LISA A. WATTS

Senior 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) 616

- 4099

DATED: May 27, 2020

3 Petitioner is a competent adult. Proof of guardianship is not required in this case.