 In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-841V
                                         (Unpublished)

*************************
                           *
TIMOTHY MCCLUSKY,          *                              Filed: December 7, 2018
                           *
               Petitioner, *                              Special Master Oler
                           *
          v.               *
                           *                              Decision by Proffer; Damages;
SECRETARY OF HEALTH        *                              Influenza (“Flu”) Vaccine; Guillain-Barré
AND HUMAN SERVICES,        *                              syndrome (“GBS”).
                           *
               Respondent. *
                           *
*************************

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Colleen Clemons Hartley, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                               DECISION AWARDING DAMAGES1

        On June 21, 2017, Timothy McClusky (“Petitioner”), filed a petition seeking
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleged
that he developed Guillain-Barré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine
that he received on August 23, 2016. See Petition (“Pet.”) at 1, ECF No. 1.


1
  Although this ruling is not formally designated for publication, it will be posted nonetheless 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 ruling’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).
        In his Rule 4(c) Report, filed on May 11, 2018, Respondent recommended that
compensation be awarded in this case. See Rule 4(c) Report at 1, ECF No. 25. Specifically,
Respondent stated that Petitioner’s GBS is “consistent with the Vaccine Injury Table for GBS
following the seasonal flu vaccination, and that it was caused-in-fact by the flu vaccine he
received on August 23, 2016.”3 Id. at 4. Respondent further stated that Petitioner “has met the
statutory requirements for entitlement to compensation” (id. at 4-5 (citing 42 U.S.C. § 300aa-
13(a)(1)(B); 42 U.S.C. § 300aa-11(c)(1)(D)), thus concluding that Petitioner has “satisfied all
legal prerequisites for compensation under the Act” (id. at 5). I subsequently issued a ruling on
entitlement on May 17, 2018. ECF No. 26.

        On November 29, 2018, Respondent filed a proffer that was mutually agreed-upon with
Petitioner, proposing an award of compensation. ECF No. 39. I have reviewed the file, and,
based upon that review, I conclude that 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 payment of $204,518.52, in the form of a check payable to Petitioner,
              Timothy McClusky.

ECF No. 39 at 1-2. This amount represents 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 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.4

          IT IS SO ORDERED.


                                                                s/ Katherine E. Oler
                                                                   Katherine E. Oler
                                                                   Special Master




3
    The Vaccine Injury Table is located at 42 C.F.R. § 100.3.
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

                                                    )
 TIMOTHY McCLUSKY,                                  )
                                                    )
                Petitioner,                         )
                                                    )   No. 17-841V
 v.                                                 )   Special Master Oler
                                                    )   ECF
 SECRETARY OF HEALTH AND HUMAN                      )
 SERVICES,                                          )
                                                    )
                Respondent.                         )
                                                    )

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On June 21, 2017, Timothy McClusky (“petitioner”) filed a petition for vaccine injury

compensation alleging that he suffered Guillain-Barre Syndrome (“GBS”) as result of a flu

vaccine administered on August 23, 2016. On May 11, 2018, respondent conceded that

entitlement to compensation was appropriate under the terms of the Vaccine Act. On May 17,

2018, Special Master Oler issued a Ruling on Entitlement finding that petitioner was entitled to

compensation. The case is now in damages.

       I.      Items of Compensation

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

$204,518.52, consisting of pain and suffering ($150,000.00), lost earnings ($50,871.15); and past

unreimbursed expenses ($3,647.37), 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 be made through a




                                                1
lump sum payment of $204,518.52 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,

                                                       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

                                                       GABRIELLE M. FIELDING
                                                       Assistant Director
                                                       Torts Branch, Civil Division

                                                       /s/ Colleen C. Hartley
                                                       COLLEEN C. HARTLEY
                                                       Trial Attorney
                                                       Torts Branch, Civil Division
                                                       U.S. Department of Justice
                                                       P.O. Box 146
                                                       Benjamin Franklin Station
                                                       Washington, D.C. 20044-0146
                                                       Phone: (202) 616-3644
                                                       Fax: (202) 353-2988
DATED: November 29, 2018




1
 Should petitioner die prior to the 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.


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