         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                          No. 14-1136V
                                       Filed: June 2, 2015

****************************
JOSE GUADALUPE GARCIA, II,               *
                                         *
                    Petitioner,          *      Damages Decision Based on Proffer;
       v.                                *      Meningococcal Vaccine;
                                         *      Vasovagal Syncope; Attorneys’ Fees
SECRETARY OF HEALTH                      *      and Costs Decision Based on Proffer;
AND HUMAN SERVICES,                      *      Special Processing Unit (“SPU”)
                                         *
                    Respondent.          *
                                         *
****************************
 Larry Lee Thweatt, Jr., Esq., Terry & Thweatt, PC, Houston, TX for petitioner.
 Lisa Watts, Esq., U.S. Department of Justice, Washington, DC for respondent.


       DECISION AWARDING DAMAGES AND ATTORNEYS’ FEES AND COSTS1

Vowell, Chief Special Master:

           On November 21, 2014, Jose Guadalupe Garcia, II filed a petition for
    compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
    §300aa-10, et seq.,2 [the “Vaccine Act” or “Program”]. Petitioner alleges that he
    suffered injuries resulting from fainting after receiving the meningitis vaccine on
    December 26, 2012. Petition at 1. The case was assigned to the Special Processing
    Unit of the Office of Special Masters.

       On February 6, 2015, I issued a ruling on entitlement, finding petitioner entitled to
compensation. On June 2, 2015, respondent filed a proffer on award of compensation
[“Proffer”] detailing compensation in the amount of $7,091.00 for future un-reimbursable
medical expenses, $69,112.54 for actual and projected pain and suffering, and
$23,796.46 for past un-reimbursable expenses for a total of $100,000.00. Proffer at 1-
2. Respondent averred that petitioner agreed to the amounts set forth therein. Id. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a).


1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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.
        The proffer also included an award of attorneys’ fees and costs in the amount of
$16,775.55 to which petitioner agreed. Proffer at 2. The proffer indicates that
“petitioner intends to file a statement confirming that he incurred no out-of-pocket
expenses in proceeding on the petition.” Id. This statement is sufficient for compliance
with General Order #9.

      The Vaccine Act permits an award of reasonable fees and costs. 42 U.S.C. § 300
aa-15(e). I find the proposed total amount of $16,775.55 to be reasonable.

     Pursuant to the terms stated in the attached Proffer, I award petitioner a
payment of $116,775.55 as follows:

        a. a lump sum payment of $100,000.00 in the form of a check payable solely to
petitioner, Jose Guadalupe Garcia, II;

        b. a lump sum payment of $16,775.55 in the form of a check payable jointly to
petitioner, Jose Guadalupe Garcia, II and petitioner’s counsel, Larry Lee Thweatt, Jr.

       The clerk of the court is directed to enter judgment in accordance with this
decision.2

                                        s/Denise K. Vowell
                                        Denise K. Vowell
                                        Chief Special Master




2
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


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            Case 1:14-vv-01136-UNJ Document 18 Filed 06/02/15 Page 1 of 4



                IN THE UNITED STATES COURT OF FEDERAL CLAIMS

                        OFFICE OF SPECIAL MASTERS
_________________________________________
JOSE GUADALUPE GARCIA, II,               )
                                         )  ECF
                        Petitioner,      )
                                         )
            v.                           )  No. 14-1136V
                                         )  Chief Special Master
SECRETARY OF HEALTH AND HUMAN            )  Denise K. Vowell
SERVICES,                                )
                                         )
                        Respondent.      )
                                         )

              RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I. Items of Compensation

       A.       Future Un-Reimbursable Medical Expenses

       Respondent proffers that, based on the evidence of record, petitioner is likely to incur

$7,091.00 in future un-reimbursable medical expenses, representing the cost of oral surgery as a

result of his vaccine-related injury. See 42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.

       B.       Lost Earnings

       The parties agree that based upon the evidence of record, it is unlikely that petitioner’s

vaccine-related injury will impact his future earnings capacity. See 42 U.S.C.

§ 300aa-15(a)(3)(A). Petitioner agrees.

       C.       Pain and Suffering

       Respondent proffers that petitioner should be awarded $69,112.54 in actual and projected

pain and suffering. See 42 U.S.C. § 300aa-15(a)(4), (f)(4)(A). Petitioner agrees.




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            Case 1:14-vv-01136-UNJ Document 18 Filed 06/02/15 Page 2 of 4



       D.       Past Un-reimbursable Expenses

       Evidence supplied by petitioner documents his expenditure of past un-reimbursable

expenses related to his vaccine-related injury. 42 U.S.C. § 300aa-15(a)(1)(B). Respondent

proffers that petitioner should be awarded past un-reimbursable expenses in the amount of

$23,796.46. Petitioner agrees.

       E.       Medicaid Lien

       Petitioner represents that there are no Medicaid liens outstanding against him.

       F.       Attorneys’ Fees and Costs

       Petitioner has supplied documentation of reasonable attorneys’ fees and litigation costs in

the amount of $16,775.55 incurred in pursuit of this petition. In compliance with General Order

#9, petitioner intends to file a statement confirming that he incurred no out-of-pocket expenses in

proceeding on the petition. Respondent proffers that petitioner should be awarded $16,775.55

for attorneys’ fees and costs, as provided under 42 U.S.C. § 300aa-15(e)(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 as described below, and request that the Chief Special Master’s

decision and the Court’s judgment award the following: 1

             A. A lump sum payment of $100,000.00, representing petitioner’s future medical

                expenses ($7,091.00), pain and suffering ($69,112.54), and past un-reimbursable

                expenses ($23,796.46) in the form of a check payable to petitioner.


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 pain and
suffering and future medical expenses.

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          Case 1:14-vv-01136-UNJ Document 18 Filed 06/02/15 Page 3 of 4



           B. A lump sum of $16,775.55 in the form of a check payable to petitioner and

              petitioner’s attorney, L. Lee Thweatt, Esq., for attorneys’ fees and costs.

              Petitioner agrees to endorse this payment to petitioner’s attorney.

              1.     Guardianship

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

III. Summary of Recommended Payments Following Judgment

     A.       Lump sum paid to petitioner for future un-reimbursable expenses,
              pain and suffering, and past un-reimbursable expenses:           $100,000.00

     B.       Attorneys’ Fees and Costs paid jointly to petitioner and his
              counsel:                                                              $16,775.55


                                            Respectfully submitted,

                                            BENJAMIN C. MIZER
                                            Principal Deputy Assistant Attorney General

                                            RUPA BHATTACHARYYA
                                            Director
                                            Torts Branch, Civil Division

                                            VINCENT J. MATANOSKI
                                            Deputy Director
                                            Torts Branch, Civil Division

                                            GLENN A. MACLEOD
                                            Senior Trial Counsel
                                            Torts Branch, Civil Division




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         Case 1:14-vv-01136-UNJ Document 18 Filed 06/02/15 Page 4 of 4




                                    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
                                    Telephone: (202) 616-4099

Dated: June 2, 2015.




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