# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13

- 487V

(Not to be p ublished)

* * * * * * * * * * * * * * * * * * * * * * * * *

* Special Master Corcoran

DAVID FAIRCHILD

, *

*

Petitioner, * Filed: September 20 , 2019

*

v. *

* Decision by Proffer ; Damages; Loss of

SECRETARY OF HEALTH * Future Earnings.

AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * *

Richard Gage , Richard Gage, P.C., Cheyenne, WY, for Petitioner.

Glenn A. MacLeod , U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES 1

On July 18, 2013

, David Fairchild filed a petition seeking compensation under the National

Vaccine Injury Compensation Program. 2 ECF No. 1. Petitioner alleged that he suffered from

brachial neuritis as a result of the tetanus vaccine he received on February 29, 2012 Id. at 1

.

Res pondent conceded that Petitioner was entitled to compensation in his Rule 4(c) Report filed on

October 30, 2013. ECF No. 14.

1 Although not formally designated for publication, this Decision will be posted on the United States Court of Federal

Claims website in accordance with the E

- Government Act of 2002, 44 U.S.C. § 3501 (2012). This means th e Decision

will be available to anyone with access to the internet . As provided by 42 U.S.C. § 300aa

- 12(d)(4)(B), however,

the parties may object to the published Decision’s inclusion of certain kinds of confidential information. Specifically,

under Vaccin e Rule 18(b), each party has fourteen days within which to request redaction “of any information

furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or

confidential; or (2) that includes medical fil es or similar files, the disclosure of which would constitute a clearly

unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public

in its current form. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa

- 10 through 34 (20 12) (“Vaccine Act” or “the Act”)

. Individual section references hereafter will be to § 300aa of the Act (but w ill omit that statutory prefix)

.2 Ever since, the parties have been engaged in protracted damages negotiations. In late July

2015, Petitioner indicated that he no longer felt that settlement was possible, so a damages hearing

was set for February 2016, in Chattanooga, Tennessee. ECF No. 60

. However, the damages

hearing was rescheduled twice

, and I ultimately chose to resolve the dispute on the papers. ECF

No. 75. I issued a ruling on the only disputed damages component, denying Petitioner’s request

for compensation for future loss of earnin gs on April 13, 2017. ECF No. 99. Petitioner thereafter

sought reconsideration of that ruling (ECF No. 101), which I also denied (ECF No. 106).

At my direction, the parties filed a proffer regarding the damages issues upon which they

agreed on July 28, 20 17. ECF No. 112. I approved the requested amount that same day. ECF No.

113. Petitioner subsequently filed a Motion for Review of my ruling on loss of future earnings

(ECF No. 116), accompanied by new evidence relating to his long

- term disability determina tion.

In light of this newly

- filed evidence, review was granted and the case was remanded to me. ECF

No. 128.

In light of the unusually lengthy period of time dedicated to resolving damages in this

matter, I granted Petitioner’s request for an interim da mages award on December 1, 2017. ECF

No. 133. At that time, I adopted the parties’ proposed Proffer of damages for all categories other

than loss of future wages as my Decision Awarding Interim Damages. Id. Petitioner was awarded

a sum of $319,001.36, plus an amount sufficient to purchase an annuity contract (as described in

detail in the relevant Proffer). Id. at 4.

The parties thereafter continued to negotiate an appropriate damages award for loss of

future earnings. On August 21, 2019, Respondent filed a proffer on this final unresolved damages

component. ECF No. 160. I reviewed the file, conclude d that Respondent’s Proffer ( ECF No. 160 )

was reasonable , and adopted it as my decision. See Decision of Awarding Damages, dated August

22, 2019 (ECF No. 161). Later, Respondent’s counsel discovered that the proffer contained a

minor typographical error. See Joint Motion for Reconsideration, dated September 4, 2019 (ECF

No. 162). The correct amount should have been $1,220,972.00; thus, the award was understated

by $45.00. See id. T he parties filed a joint motion for reconsideration to correct this error. See id.

I granted the motion and directed the parties to file an amended proffer as soon as possible. See

(ECF No. 163). On September 10, 2019 the parties filed an Amended Proffer awarding damages

on the terms set forth therein. (ECF No. 164).

The P roffer propose s:

• A lump sum payment of $ 1,220,9 72 .00 , in the form of a check payable to Petitioner.

(ECF No. 164) at 1

. In conjunction with the Interim Damages Award of December 1, 2017, this3 amount represent s compensation for all elements of compensation under Vaccine Act Section

15(a) to which Petitioner is entitled.

I approve a Vaccine Program award in the requested amount set forth above to be made to

Petitioner. In the absence of a motion for review fil ed pursuant to RCF C Appendix B, the clerk of

the C ourt is directed to enter judgment herewith. 3

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Special Master

3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)

a notice renouncing their right to seek review.IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

*

DAVID FAIRCHILD, *

*

Petitioner, *

*

v

. * No. 13

- 487V (ECF)

* S PECIAL M ASTER

* BRIAN H. CORCORAN

SECRETARY OF HEALTH *

AND HUMAN SERVICES

, *

*

Respondent. *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * *

RESPONDENT’S CORRECTED PROFFER

ON AWARD OF COMPENSATION

Respondent herein proffer s the following amount of reasonable compensation due

petitioner for lost future earnings

.

I. Item of Compensation

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

a lump sum total of $1,220,9 7 2 .00

, which amount represents compensation for lost future

earnings to which petitioner is entitled under 42 U.S.C. § 300aa

- 15(a) (3) (A)

. 1 Petitioner agrees.

II. Form of the Award

The parties recommend that the compensation provided to petitioner should be made

through a lump sum payment of $1,220,9 7 2 .00

, in the form of a check payable to petitioner

,

David Fairchild

. 2 Petitioner agrees.

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 l ost wages

.

2 Petitioner is a competent adult. No guardianship is required. Case 1:13-vv-00487-LAS Document 164 Filed 09/10/19 Page 1 of 22 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

ALEXIS B. BABCOCK

Assistant Director

Torts Branch, Civil Division

/ s/ GLENN A. MACLEOD

GLENN A. MACLEOD

Senior Trial Counsel

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 146, Benjamin Franklin Station

Washington, D.C. 20044

- 0146

Tel.: (202) 616

- 4122

DATE: September 10, 2019 Case 1:13-vv-00487-LAS Document 164 Filed 09/10/19 Page 2 of 2