        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 14-592V
                                      Filed: March 18, 2016
                                          UNPUBLISHED

****************************
DAVID DUNCAN,                           *
                                        *
                    Petitioner,         *     Damages Decision Based on Proffer;
 v.                                     *     Tetanus-Diphtheria-acellular Pertussis;
                                        *     (“Tdap”); Table Injury; Brachial Neuritis;
SECRETARY OF HEALTH                     *     Brachial Plexus; Special Processing
AND HUMAN SERVICES,                     *     Unit (“SPU”)
                                        *
                    Respondent.         *
                                        *
****************************
Isaiah Kalinowski, Maglio Christopher and Toale, PA (DC), for petitioner.
Michael Milmoe, U.S. Department of Justice, Washington, DC, for respondent.

                                DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

      On July 11, 2014, David Duncan 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 he suffered pain and weakness in his
shoulder and arm following the administration of the tetanus, diphtheria, and acellular
pertussis (“TDAP”) vaccine on October 26, 2012. Petition at 1, 4. (ECF No. 1). The
case was assigned to the Special Processing Unit of the Office of Special Masters.

       On October 28, 2014, a ruling on entitlement was issued, finding that petitioner
was entitled to compensation. (ECF No. 16). On March 18, 2016, respondent filed a
proffer on award of compensation [“Proffer”] stating that petitioner should be awarded
$193,000.00. Proffer at 1 (ECF No. 49). According to respondent’s Proffer, petitioner

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend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 (2012)). 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
agrees to the proposed award of compensation. Id. Furthermore, petitioner has filed an
“Acceptance of Proffer.” Notice, filed Mar. 18, 2016 (ECF No. 50).

        Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $193,000.00 in the form of a check payable to
petitioner, David Duncan. This amount represents compensation for all damages that
would be available under § 300aa-15(a).

       The clerk of the court is directed to enter judgment in accordance with this
decision.3

IT IS SO ORDERED.

                                        s/Nora Beth Dorsey
                                        Nora Beth Dorsey
                                        Chief Special Master




3
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


                                                    2
           Case 1:14-vv-00592-UNJ Document 49 Filed 03/18/16 Page 1 of 2



             IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS
____________________________________
                                     )
DAVID DUNCAN,                        )
                                     )
            Petitioner,              )  No. 14-592V
                                     )  Chief Special Master Dorsey
      v.                             )  ECF
                                     )
SECRETARY OF HEALTH AND              )
HUMAN SERVICES,                      )
                                     )
            Respondent.              )
                                     )

               RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.       Compensation for Vaccine Injury-Related Items

         On October 28, 2014, then Chief Special Master Denise Vowell issued a Ruling on

Entitlement finding that petitioner was entitled to vaccine compensation for his brachial neuritis.

Respondent proffers that, based on the evidence of record, petitioner should be awarded

$193,000.00. This amount represents all elements of compensation to which petitioner would be

entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II.      Form of the Award

         Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment as described below, and requests that the special master’s decision

and the Court’s judgment award the following: 1

      A. A lump sum payment of $193,000.00 in the form of a check payable to petitioner, David
         Duncan. This amount accounts for all elements of compensation under 42 U.S.C.
         § 300aa-15(a) to which petitioner would be entitled.


1
  Should petitioner die prior to entry of judgment, respondent reserves the right to move the Court for appropriate
relief. In particular, respondent would oppose any award for future medical expenses, future pain and suffering, and
future lost wages.
          Case 1:14-vv-00592-UNJ Document 49 Filed 03/18/16 Page 2 of 2



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

                                                     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

                                                     ALTHEA WALKER DAVIS
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division

                                                     /s/ Michael P. Milmoe
                                                     MICHAEL P. MILMOE
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division
                                                     U.S. Department of Justice
                                                     P.O. Box 146
                                                     Benjamin Franklin Station
                                                     Washington, D.C. 20044-0146
                                                     Phone: (202) 616-4125
Dated: March 18, 2016                                Fax:    (202) 616-4310
