                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                             No. 13-487V
                                         (Not to be published)

*************************
                            *                                   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.
Respondent 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 the 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 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
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 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
       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 earnings 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, 2017. 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 determination.
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 damages 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, concluded 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. The 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 Proffer proposes:

       •   A lump sum payment of $1,220,972.00, 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, this
                                                  2
amount represents 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 filed pursuant to RCFC Appendix B, the clerk of
the Court 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.

                                                           3
            Case 1:13-vv-00487-LAS Document 164 Filed 09/10/19 Page 1 of 2



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

************************** * *
                              *
DAVID FAIRCHILD,              *
                              *
               Petitioner,    *
                              *
v.                            *                                No. 13-487V (ECF)
                             *                                 SPECIAL MASTER
                              *                                BRIAN H. CORCORAN
SECRETARY OF HEALTH           *
AND HUMAN SERVICES,           *
                              *
               Respondent.    *
*****************************

                            RESPONDENT’S CORRECTED PROFFER
                               ON AWARD OF COMPENSATION

            Respondent herein proffers the following amount of reasonable compensation due

petitioner for lost future earnings.

I.        Item of Compensation

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

a lump sum total of $1,220,972.00, 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 $1,220,972.00, 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 lost wages.
2
      Petitioner is a competent adult. No guardianship is required.
       Case 1:13-vv-00487-LAS Document 164 Filed 09/10/19 Page 2 of 2



                                   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




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