                  In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 14-1144V
                                          (Not to be Published)

*************************
                           *
DUKE DUQUETTE,             *
                           *
               Petitioner, *                                      Filed: May 16, 2016
                           *
          v.               *
                           *                                      Decision by Proffer; Damages;
SECRETARY OF HEALTH        *                                      Tetanus-diphtheria-acellular pertussis
AND HUMAN SERVICES,        *                                      (“Tdap”) Vaccine; Complex Regional Pain
                           *                                      Syndrome (“CRPS”); Lymphadenopathy.
               Respondent. *
                           *
*************************

Howard S. Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for Petitioner.

Michael P. Milmoe, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                                   DECISION AWARDING DAMAGES1

       On November 24, 2014, Duke Duquette filed a petition seeking compensation under the
National Vaccine Injury Compensation Program.2 Petitioner alleges that he suffered from
Complex Regional Pain Syndrome (“CRPS”) and lymphadenopathy as a result of receiving the
Tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination on June 13, 2012.




1
  Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine 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 files 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. 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 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
        On May 13, 2016, Respondent filed a proffer proposing an award of compensation.3 In the
proffer, Respondent indicated that after reviewing the petition and medical records filed in this
case the medical personnel at the Division of Injury Compensation Programs (“DICP”) at the
Department of Health and Human Services have determined that compensation is appropriate.
Respondent specifically indicated thet DICP believes that Petitioner’s alleged CRPS is related to
the administration of a Tdap vaccine. I have reviewed the file, and based upon that review I
conclude that the Respondent’s proffer (as attached hereto) is reasonable. I therefore adopt it as
my decision in awarding damages on the terms set forth therein.

         The proffer awards:

            A lump sum of $1,610.69, which amount represents reimbursement of a
             Commonwealth of Massachusetts Medicaid lien, in the form of a check payable jointly
             to Petitioner, and
                 Commonwealth of Massachusetts - CRU
                 Commonwealth of MA
                 Casualty Recovery
                 P.O. Box 417811
                 Boston, MA 02241-7811
              Petitioner agrees to endorse this check to the appropriate State agency; and

            A lump sum payment of $130,000, in the form of a check payable to Petitioner.

       These amounts represent compensation for all elements of compensation under 42 U.S.C.
§ 300aa-15(a) to which Petitioner is entitled.

        I approve a Vaccine Program award in the requested amounts set forth above to be made
to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk
of the court is directed to enter judgment herewith.4


         IT IS SO ORDERED.

                                                                       /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Special Master




3
 On February 4, 2016, at the request of the parties, I issued a 15 week order in this case. Based on the filing of the
proffer, I hereby vacate the 15 week order.
4
 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.

                                                           2
              IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                        OFFICE OF SPECIAL MASTERS


DUKE DUQUETTE,

               Petitioner,

v.                                                   No. 14-1144V
                                                     Special Master Corcoran
SECRETARY OF HEALTH AND                              ECF
HUMAN SERVICES,

               Respondent.


        RESPONDENT’S RULE 4(c) REPORT AND PROFFER ON DAMAGES

       On November 24, 2014, Duke Duquette (“petitioner”) filed a petition for compensation

(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -

34 (“Vaccine Act” or “Act”), as amended. The Petition alleges that petitioner received a

Tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine on June 13, 2012, and subsequently

suffered Complex Regional Pain Syndrome (“CRPS”) and lymphadenopathy which were caused-

in-fact by the Tdap vaccine.

       Medical personnel at the Division of Injury Compensation Programs (“DICP”) at the

Department of Health and Human Services have reviewed the Petition and medical records

filed in the case to determine whether petitioner qualifies for compensation under the Vaccine

Act. DICP has concluded that compensation is appropriate in this case. In accordance with

Vaccine Rule 4(c), the Secretary of Health and Human Services (“respondent”) submits the

following as her responsive report.

                                  FACTUAL SUMMARY

       Petitioner was born on February 17, 1964. He received a Tdap vaccine on June 13,

2012. The site of the injection was not documented. In a Decision dated May 22, 2015, the
                                               1
special master found that the vaccination was administered in petitioner’s left arm. Petitioner

presented to the emergency room two days later, on June 15, 2012, with pain and swelling in

the left side of his neck for the previous one to two days. The history of the tetanus shot was

documented. He was treated with intravenous antibiotics for possible cellulitis and dismissed,

to be followed as an outpatient. Petitioner’s Exhibit (“Pet. Ex.”) 4 at 50-53, 59.

       Petitioner was seen in Urgent Care on June 16, 2012 for follow-up. He complained of

significant pain in the left arm since he had gone to the emergency room. He was referred back

to the emergency room for evaluation. Pet. Ex. 5 at 6. Petitioner returned to the emergency

room on June 17, 2012, and reported that his symptoms had progressed to left jaw pain and

swelling of the left hand. The diagnosis was muscle pain. Pet. Ex. 4 at 66-70. On June 19,

2012, petitioner was again seen in Urgent Care because his left arm was becoming achy and

swollen. Pet. Ex. 5 at 7-8.

       Petitioner was evaluated by a thoracic surgeon on July 11, 2012. The impression was

recent onset of inflammation and probable infection in the left supraclavicular fossa. He had

surgery for bronchoscopy and lymph node biopsies on July 19, 2012. Pet. Ex. 7 at 5-6.

Petitioner seemed to improve but was again seen in the emergency room of October 19, 2012

for severe left arm pain. Pet. Ex. 4 at 117-119.

       Petitioner was seen by a neurologist on January 14, 2013 and March 1, 2013. A history

was given noting onset of pain after the Tdap immunization. An EMG was performed on

February 13, 2013, which showed mild acute denervation changes in the left C-8 and C-5

innervated muscles. Pet. Ex. 9 at 1-10. The possibility of CRPS was noted. Referral was

made to an orthopedist and petitioner was evaluated by the orthopedist on March 18, 2013.

The orthopedist believed petitioner most likely suffered from CRPS. Pet. Ex. 10 at 1-2.



                                                   2
Petitioner was then seen by a rheumatologist on March 20, 2013, and the rheumatologist

confirmed the diagnosis as CRPS. Pet. Ex. 11.

       By November 26, 2013, petitioner was having continued pain in his left arm and

shoulder. He was not able to move the arm due to pain and he had contractures due to

immobility. Pet. Ex. 13 at 34-37.

                                          ANALYSIS

       DICP believes that petitioner’s alleged CRPS is related to the administration of a Tdap

vaccine. As such, DICP agrees that petitioner’s claim satisfies the Althen requirements and

that his alleged injury was caused-in-fact by a vaccination. See Althen v. HHS, 418 F.3d 1274,

1278 (Fed. Cir. 2005). No other cause for petitioner’s condition has been identified. See 42

U.S.C. § 300aa-13(a)(1)(B). Based on the medical records outlined above, petitioner has met

the statutory requirements by suffering the residual effects of his condition for more than six

months. See id. at § 300aa-11(c)(1)(D)(i). Therefore, based on the record as it now stands,

petitioner has satisfied all legal prerequisites for compensation under the Act.

                      PROFFER ON AWARD OF COMPENSATION

I.    Items of Compensation

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

awarded $131,610.69, which 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 the following lump sum payments:




                                                3
       a) a lump sum of $1,610.69, which amount represents reimbursement of a
          Commonwealth of Massachusetts Medicaid lien, in the form of a check payable
          jointly to petitioner, and

               Commonwealth of Massachusetts - CRU
               Commonwealth of MA
               Casualty Recovery
               P.O. Box 417811
               Boston, MA 02241-7811

       Petitioner agrees to endorse this check to the appropriate State agency.

       b) a lump sum payment of $130,000, 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,

                                             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




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
medical expenses, future pain and suffering, and future lost wages.

                                                4
                      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
                     Tel: (202) 616-4125

Date: May 13, 2016




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