VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_13-vv-00487
Package ID: USCOURTS-cofc-1_13-vv-00487
Petitioner: David Fairchild
Filed: 2013-07-18
Decided: 2019-11-18
Vaccine: tetanus
Vaccination date: 2012-02-29
Condition: bilateral brachial neuritis
Outcome: compensated
Award amount USD: 1539973

AI-assisted case summary:
David Fairchild filed a petition on July 18, 2013, alleging that a tetanus vaccination he received on February 29, 2012 caused him to develop bilateral brachial plexus neuritis with partial diaphragm paralysis. On October 30, 2013, respondent filed a Rule 4(c) Report conceding that petitioner had demonstrated a Table Injury of brachial neuritis and was entitled to compensation.

The case proceeded to a protracted damages phase spanning more than six years. The parties reached agreement on all damages components except loss of future earnings. In April 2017, Special Master Corcoran denied petitioner's request for future lost earnings, and the Court of Federal Claims subsequently remanded the matter in December 2017 in light of new long-term disability evidence petitioner had submitted. In December 2017, Special Master Corcoran granted petitioner an interim damages award of $319,001.36, plus an amount sufficient to purchase an annuity contract for future life care expenses. The Court of Federal Claims denied respondent's motion for review of the interim award in May 2018.

Special Master Corcoran issued the final Decision Awarding Damages on September 20, 2019, awarding petitioner an additional $1,220,972.00 as a lump sum for future loss of earnings. Petitioner's total lump sum compensation thus consisted of $319,001.36 (interim) and $1,220,972.00 (future earnings), plus an annuity for future life care years. Petitioner was also awarded $36,000.00 in interim attorneys' fees and costs.

Theory of causation field:
Tetanus Feb 29, 2012 (leap day) → bilateral brachial neuritis/partial diaphragm paralysis (Table Injury). Respondent conceded Oct 30, 2013 (Rule 4(c) Report). Protracted damages 2013-2019. Interim comp Dec 2017: $319,001.36 + annuity. CFL denied respondent's MFR May 2018. Final decision Sep 2019: $1,220,972 future earnings. Total lump sum $1,539,973.36 + annuity. Interim fees $36,000 (Gage, Richard Gage PC, Cheyenne WY).

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_13-vv-00487-0
Date issued/filed: 2015-07-28
Pages: 2
Docket text: PUBLIC DECISION (Originally filed: 03/03/2015) Regarding 40 DECISION Interim Fees Stipulation (Signed by Special Master Brian H. Corcoran). (ay) Copy to parties.
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Case 1:13-vv-00487-LAS Document 52 Filed 07/28/15 Page 1 of 2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-487V
(Not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* Filed: March 3, 2015
DAVID FAIRCHILD, *
*
Petitioner, * Decision; Interim Attorney’s
* Fees & Costs
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.
Glenn MacLeod, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
INTERIM ATTORNEY’S FEES AND COSTS DECISION1
On July 18, 2013, David Fairchild filed a petition seeking compensation under the National
Vaccine Injury Compensation Program.2 After Petitioner filed medical records in support of his
claim, Respondent conceded (in her Rule 4(c) report filed on October 30, 2013) that Petitioner was
entitled to the presumption of vaccine causation, as he had demonstrated that he meets the criteria
for a Table Injury of Brachial Neuritis (“BN”) following receipt of the tetanus vaccine. See
Respondent’s Rule 4(c) Report, (ECF No. 14) at 2, 7. Since that time the parties have been
attempted to resolve this damages issue in this case through informal settlement negotiations. See,
e.g., Scheduling Order, dated Oct. 30, 2013 (ECF No. 15) at 1.
1 Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of
the United States Court of Federal Claims, 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)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that each party has fourteen (14) 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 decision will be available to the public. Id.
2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. § 300aa-10 to 34 (2006)) [hereinafter
“Vaccine Act” or “the Act”]. Individual sections references hereafter will be to § 300aa of the Act.

Case 1:13-vv-00487-LAS Document 52 Filed 07/28/15 Page 2 of 2
Petitioner filed a request for an award for interim attorney’s fees and costs on January 8,
2015 seeking $38,519.70. Application for Award of Interim Attorney’s Fees and Reimbursement
of Costs (ECF No. 32) at 1. Respondent subsequently filed an unopposed motion for enlargement
of time to respond to Petitioner’s application for interim attorney’s fees and costs (Unopposed
Motion for Enlargement of Time to File Response to Petitioner’s Application for Interim
Attorney’s Fees and Costs (ECF No. 34)), which I granted (Order, dated Jan. 22, 2015). During a
status conference on January 28, 2015, I asked the parties to confer regarding Petitioner’s pending
motion of interim attorney’s fees and costs to see if settlement of this issue was feasible.
Scheduling Order (ECF No. 35) at 1.
Thereafter, on February 20, 2015, the parties filed a stipulation regarding attorney’s fees
and costs. ECF No. 36. The parties now agree that Petitioner’s counsel should receive a lump sum
of $36,000.00, for all interim attorney’s fees and costs for the period of representation through
December 19, 2014 in the form of a check payable to Petitioner and Petitioner’s counsel. This
amount represents a sum to which Respondent does not object. In addition, in compliance with
General Order #9, Petitioner’s attorney has noted that Petitioner is not seeking interim out-of-
pocket expenses at this time.
I approve the requested amount for interim attorney’s fees and costs as reasonable, given
the history of this matter. Accordingly, an award of $36,000.00 should be made in the form of a
check payable jointly to Petitioner and Petitioner’s counsel, Richard Gage, Esq. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER
JUDGMENT in accordance with the terms of the parties’ stipulation.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.
2

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DOCUMENT 2: USCOURTS-cofc-1_13-vv-00487-1
Date issued/filed: 2017-12-11
Pages: 4
Docket text: JUDGE VACCINE REPORTED OPINION re: 128 Order Remanding to Special Master. Signed by Senior Judge Loren A. Smith. (mr) Copy to parties.
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Case 1:13-vv-00487-LAS Document 137 Filed 12/11/17 Page 1 of 4
United States Court of Federal Claims
No. 13-487V
(Filed Under Seal: November 21, 2017)
Reissued: December 11, 20171
)
DAVID FAIRCHILD, )
)
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
ORDER
Richard Gage, Richard Gage P.C., Cheyenne, WY, for petitioner.
Glenn Alexander MacLeod, Vaccine/Torts Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent.
SMITH, Senior Judge:
Petitioner, David Fairchild, seeks review of a decision issued by Special Master Brian H.
Corcoran denying his request for loss of future earnings as part of his vaccine injury
compensation. Petitioner brought this action pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (2012), alleging that his bilateral brachial
plexus neuritis resulted from a tetanus vaccination. The Special Master granted compensation
but denied an award of loss of future earnings. Petitioner now moves for review of this decision.
For the reasons that follow, the Court grants petitioner’s motion, and the case is remanded to the
Special Master.
I. BACKGROUND
A brief recitation of the facts provides necessary context.2
1 An unredacted version of this opinion was issued under seal on November 21, 2017. The
parties were given an opportunity to propose redactions, but no such proposals were made.
2 As the basic facts here have not changed significantly, the Court’s recitation of the background
facts here draws from the Special Master’s earlier Ruling on Disputed Damages Issue
(hereinafter “Ruling”), 13-487 V, ECF No. 99.

Case 1:13-vv-00487-LAS Document 137 Filed 12/11/17 Page 2 of 4
On July 18, 2013, David Fairchild filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (hereinafter “Vaccine Act”), 42 U.S.C. §§
300aa-10 et seq. On October 30, 2013, respondent filed its Rule 4(c) Report, agreeing that the
petitioner had satisfied the legal prerequisites to receive compensation under the Vaccine Act.
As a result of this concession, the parties engaged in settlement throughout 2014, 2015, and 2016
in order to calculate a damages award. Ultimately, the parties came to an agreement on all
damages except for loss of future earnings.
Petitioner was born on July 24, 1957. He received a tetanus vaccination on February 29,
2012, as part of a required company physical. As a result of that vaccination, petitioner
developed bilateral brachial neuritis with partial diaphragm paralysis. He is on a variety of pain
medications and participates in physical therapy in an effort to combat the effects of his
disability.
As of the date of the Special Master’s ruling on disputed damages, petitioner was
employed as the Director of Engineering and Reliability at Olin Corporation (“Olin”). Prior to
receiving that position, petitioner was employed at Olin for more than ten years, serving in a
variety of supervisory roles. As the Director of Engineering and Reliability, petitioner oversaw
machine maintenance and repair, guaranteed the machinery had proper oversight, and provided
guidance and expectations for meeting strategic planning goals, in addition to a variety of other
managerial duties. Petitioner was expected to work until he was 66.5 years old, or until the end
of 2023, at which point he would have been employed by Olin for approximately 18 years.
Petitioner argues that, due to the irreparable harm caused by his vaccination, he will soon
lose his ability to work. As a result of his anticipated inability to perform the essential functions
of his job, petitioner posits that he is entitled to $720,204.00 in lost future wages. Respondent
argues that petitioner is capable of continuing to work through his preferred date of retirement
and is, thus, not entitled to lost future wages. However, respondent agrees that, if petitioner were
to receive an award for future earnings, it should be for $720,204.00.
Throughout the course of proceedings, both petitioner and respondent filed expert reports
from a variety of sources to support their positions on whether petitioner was eligible for loss of
future earnings. Petitioner submitted evidence from Dr. Sharon Farber, his treating neurologist,
and from Dr. Robert Catanese, Ph.D., his neuropsychologist. Petitioner also included reports
from his vocational expert, Mr. Allan S. Billehus. In response, respondent included reports from
life care planner, Nurse Lara E. Fox, and vocational expert, Mr. Edward L. Bennett. Petitioner
then filed a rebuttal opinion from his own life care planner, Nurse Tresa Johnson.
The Special Master engaged in a review of the evidence, and, on April 13, 2017, Special
Master Corcoran ultimately determined that petitioner was not entitled to lost future earnings.
Upon making that determination, the Special Master ordered the parties to incorporate that
determination into a proffer that would be a basis for a decision awarding petitioner
compensation. Petitioner filed a Motion for Reconsideration on May 3, 2017, in light of new
evidence, namely Olin’s ongoing disability evaluation. Petitioner’s Renewed Motion to
Reconsider, ECF No. 103, at 1. The Special Master denied the Motion for Reconsideration on
June 20, 2017. Order Denying Motion for Reconsideration (hereinafter “Order on Recon.”),
- 2 -

Case 1:13-vv-00487-LAS Document 137 Filed 12/11/17 Page 3 of 4
ECF No. 106. The Special Master issued his final decision on damages on July 28, 2017.
Decision Finding Entitlement and Awarding Damages (hereinafter “Decision”), ECF No. 113, at
2. Petitioner filed its Motion for Review on August 28, 2017. Memorandum of Objections
(hereinafter “MFR”), ECF No. 116. Respondent filed its Response to Petitioner’s Motion for
Review on September 26, 2017. Respondent’s Memorandum in Response to Petitioner’s Motion
for Review (hereinafter “Resp. MFR”), ECF No. 123. Oral Argument on the Motion for Review
was held on November 15, 2017. This case is now fully briefed and ripe for review.
II. DISCUSSION
Under the Vaccine Act, this Court may review a special master’s decision upon the
timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)-(2). In that instance, the Court
may: “(A) uphold the findings of fact and conclusions of law. . . , (B) set aside any findings of
fact or conclusion of law. . . found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. . . , or, (C) remand the petition to the special master for
further action in accordance with the court’s direction.” Id. at § 300aa-12(e)(2)(A)-(C).
Findings of fact and discretionary rulings are reviewed under an “arbitrary and capricious”
standard, while legal conclusions are reviewed de novo. Munn v. Sec’y of Health & Human
Servs., 970 F.2d 863, 870 n. 10 (Fed. Cir. 1992); see also Doyle ex rel. Doyle v. Sec’y of Health
& Human Servs., 92 Fed. Cl. 1, 5 (2010).
Within this framework, petitioner makes four numbered objections to the April 13, 2017
Ruling and the July 28, 2017 Decision. See MFR at 1. First, petitioner asserts that the Special
Master abused his discretion in not staying proceedings until Mr. Fairchild’s employer made its
final disability determination in October of this year (2017). Id. Second, petitioner argues that
the Special Master acted arbitrarily and capriciously in denying loss of future earnings damages.
Id. Third, petitioner alleges that the Special Master erred as a matter of law by increasing the
burden of proof on Mr. Fairchild when reconsidering his interlocutory ruling. Id. Finally,
petitioner posits that the Special Master erred as a matter of law when he reasoned that Mr.
Fairchild was not entitled to loss of future earnings damages because he was already receiving
damages for pain and suffering. Id.
This Court’s review is primarily focused on whether the decision of the Special Master
not to stay proceedings pending the outcome of Olin’s disability determination was arbitrary and
capricious or an abuse of discretion. Petitioner posits that “Olin’s decision to place Mr. Fairchild
on long-term disability will have a direct impact on this proceeding,” because such a decision
would be outcome-determinative. MFR at 25. In his Order denying reconsideration, the Special
Master indicates that, based on the record at that time, petitioner “has been unable to show
through reliable, persuasive evidence that his vaccine injury more likely than not forced him to
retire and rendered him completely unable to ever work again.” Order on Recon. at 7. The
Special Master determined that “any lost future earnings remain purely speculative.” Id.
However, the Special Master failed to consider that the forthcoming long-term disability
determination could remove such a speculative haze.
While this Court does not agree that Olin’s long-term disability decision would
necessarily be outcome-determinative, it is impossible to deny the relevance of such a decision in
- 3 -

Case 1:13-vv-00487-LAS Document 137 Filed 12/11/17 Page 4 of 4
determining whether petitioner is entitled to loss of future earnings. At the very least, Olin’s
long-term disability determination should have been considered, and staying proceedings in
order to include petitioner’s disability report would not have been unduly burdensome or
contrary to the interests of justice. In failing to stay proceedings pending the completion of
Olin’s disability report, the Special Master based his findings on an incomplete record in a clear
abuse of discretion. As such, this case must be remanded for further review.
Finally, this Court understands and respects the discretion inherent in a Special Master’s
decision on whether or not to hold a hearing. However, a decision not to hold a hearing may
sometimes be to the detriment of the Special Master’s review of a case. This case is clearly very
complicated, with a number of different experts proffering a variety of different findings, and it
seems obvious to this Court that a hearing would help clarify the complex issue of petitioner’s
disability and potential loss of future earnings. While the decision not to hold a hearing remains
within the bounds of the Special Master’s discretion, this Court would encourage the Special
Master to consider holding a hearing during the next stages of his review. There certainly are
some cases where the lack of a hearing would be an abuse of discretion.
The Court would also note that it is aware that the Special Masters are both understaffed
and carry excessively large dockets. The Court understands that the Special Masters work long
and hard. They have carried a huge burden over the last several years, and the Court is aware of
their need for additional help and resources. Unfortunately, the Court has no power to provide
these resources. The Court, however, still has the duty to ensure individual petitioners are not
short-changed of their rights.
III. CONCLUSION
After a thorough review of the Ruling and Decision of the Special Master, as well as the
parties’ briefs, the Court has determined that this case would benefit from further review. As
such, this case is REMANDED to the Special Master for further review. The Special Master is
ORDERED to consider the long-term disability decision created by petitioner’s employer in his
evaluation of petitioner’s potential lost future wages. If necessary, a hearing should be held.3
IT IS SO ORDERED.
Loren A. Smith
s/
Loren A. Smith,
Senior Judge
3 This order shall be unsealed, as issued, after December 6, 2017, unless the parties, pursuant to
Vaccine Rule 18(b), identify protected and/or privileged materials subject to redaction prior to
that date. Said materials shall be identified with specificity, both in terms of the language to be
redacted and the reasons therefor.
- 4 -

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DOCUMENT 3: USCOURTS-cofc-1_13-vv-00487-2
Date issued/filed: 2018-01-11
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 12/01/2017) Regarding 133 DECISION of Special Master (Signed by Special Master Brian H. Corcoran). (cr) Service on parties made.
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Case 1:13-vv-00487-LAS Document 141 Filed 01/11/18 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-487V
* * * * * * * * * * * * * * * * * * * * * * * * *
DAVID FAIRCHILD, *
* Special Master Corcoran
Petitioner, *
* Filed: December 1, 2017
v. *
*
SECRETARY OF HEALTH AND * Decision on Interim Damages;
HUMAN SERVICES, * Tetanus Vaccine; Brachial
* Neuritis
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage P.C., Cheyenne, WY, for Petitioner.
Glenn MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM DAMAGES1
On July 18, 2013, David Fairchild filed a petition seeking compensation under the National
Vaccine Injury Compensation Program.2 Petitioner alleged that he suffered from brachial neuritis
as a result of the tetanus vaccine he received on February 29, 2012. ECF No. 1. Respondent
conceded that Petitioner was entitled to compensation in his Rule 4(c) Report filed on October 30,
2013. ECF No. 14.
Since that time, the parties have been engaged in drawn-out damages settlement
discussions. After nearly three years of discussions, the parties were able to reach agreement on
every element of damages, save for whether Petitioner was entitled to lost future earnings. In the
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s 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 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 Decision in its present form will be available
to the public. Id.
2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. § 300aa-10 to 34 (2006)) [hereinafter
“Vaccine Act” or “the Act”]. Individual section references hereafter will be to § 300aa of the Act.

Case 1:13-vv-00487-LAS Document 141 Filed 01/11/18 Page 2 of 4
spring of 2017, I denied this element of damages. ECF No. 99. Thereafter, Petitioner sought review
on the issue of lost future earnings, and the case was remanded in light of new evidence filed by
Petitioner relating to his long-term disability determination. ECF No. 128. That remains the sole
disputed damages element in this case.
Now, Petitioner has filed a request for an interim damages award. For the reasons stated
herein, I hereby find that Petitioner is entitled to an interim damages award consisting of
$319,001.36 and an amount sufficient to purchase the annuity contract described in the proffer.
Procedural Background
After initiating this action in July 2013, Mr. Fairchild spent from August 2013 to the end
of that year obtaining and filing medical records pertinent to his claim. On October 30, 2013,
Respondent filed his Rule 4(c) Report, agreeing that the medical records demonstrated Petitioner
had satisfied the legal prerequisites to receiving compensation under the Vaccine Act. ECF No. 14
at 2. After Respondent’s concession, the parties began attempting to calculate a damages award in
this case.
The parties otherwise continued to attempt to resolve damages for the remainder of 2014
and early 2015. In late July 2015, Petitioner indicated that he no longer felt that settlement was a
possibility due to unresolved damages issues. ECF No. 51. A damages hearing was therefore set
for February 2016, in Chattanooga, Tennessee. ECF No. 60. Subsequently, the damages hearing
was rescheduled twice due to the parties’ incomplete attempts to resolve issues concerning lost
future earnings and other damages issues. Therefore, I subsequently informed the parties that due
to their inability to resolve the matter, despite numerous opportunities to do so, I would instead
resolve their dispute on the papers. ECF No. 75.
After allowing briefing on the matter, I issued a decision denying Petitioner’s request for
compensation for future loss of earnings on April 13, 2017. See Ruling on Disputed Damages,
dated Apr. 13, 2017 (ECF No. 99). Thereafter, Petitioner filed a motion for reconsideration on
May 3, 2017 (ECF No. 101), which I also denied after determining that Petitioner had not produced
sufficient new or persuasive evidence that warranted changing my previous decision. ECF No.
106. On July 28, 2017, at my direction, the parties filed a proffer as to the elements of
compensation on which both Petitioner and Respondent agreed (with the exception of future loss
of earnings) providing for a lump sum payment of $319,001.36, plus an amount sufficient to
purchase the annuity contract described in Section II.B. of the proffer. ECF No. 112 (a copy of
which is attached as Court Exhibit 1). I approved the requested amount that same day. ECF No.
113.
2

Case 1:13-vv-00487-LAS Document 141 Filed 01/11/18 Page 3 of 4
On August 28, 2017, Petitioner filed a Motion for Review of my Ruling on the disputed
loss of future earnings issue. See ECF No. 116. Thereafter, the case was remanded in light of new
evidence filed by Petitioner relating to his long-term disability determination (ECF No. 128).
Interim Damages Request
Petitioner has now filed a motion requesting an interim award of damages in the amount
of $319,001.36 (representing $37,668.30 in life care expenses incurred in the first year after
judgment, $250,000.00 in pain and suffering, and $31,333.063 in past unreimbursable expenses),
plus an amount sufficient to purchase the annuity contract as described in the Proffer. See Motion
for Interim Award, dated November 22, 2017 (ECF No. 130). These sums are consistent with what
the Proffer sets out. See Court Ex. 1. On November 29, 2017, Respondent filed a document in
opposition, contesting both Petitioner’s entitlement to an interim award and the special masters’
authority to award them. See Respondent’s Response, dated Nov. 29, 2017 (ECF No. 131).
In the Vaccine Program, it has been determined that special masters have the authority to
award compensation on an interim basis. Special Master Moran, for example, has awarded interim
damages to a petitioner for past unreimbursed expenses and past pain and suffering. Lerwick v.
Sec’y of Health & Human Servs., No. 06-847V, 2014 WL 1897656 (Fed. Cl. Spec. Mstr. Apr. 6,
2014) (finding that special masters have discretionary authority to award interim damages, and
determining an interim award was appropriate considering the facts of the case). In addition, Chief
Special Master Dorsey also awarded interim damages to petitioner for past pain and suffering,
consistent with Lerwick. Day v. Sec’y of Health & Human Servs., No. 12-630V, 2016 WL 3457749
(Fed. Cl. Spec. Mstr. May 31, 2016), aff’d, 129 Fed. Cl. 450 (2016).
Based on my review of the record, and in light of Respondent’s concession in this case, I
find an interim award of damages is highly appropriate. Special Master Moran’s reasoning in
Lerwick, and Special Master Dorsey’s reasoning in Day, are persuasive with regard a special
master’s discretionary authority to issue an interim award. Both special masters found, and I agree,
that the Vaccine Act does not prohibit special masters from issuing multiple decisions on damages,
even if the Act does not so expressly provide. See Lerwick, 2014 WL 1897656, at *8-9; Day, 2016
WL 3457749, at *4.
Respondent’s arguments presented in opposition to an interim damages award herein are
largely identical to those addressed and dismissed by both Special Master Moran and Special
Master Dorsey in Lerwick and Day, respectively. See Lerwick, 2014 WL 1897656, at *10; Day,
2016 WL 3457749, at *4. Respondent otherwise maintains that inconsistent election judgments
3 Petitioner's interim damages award motion does not specifically reference this component of damages, but it was
included in the Proffer as a resolved damages item, and since it reflects incurred but unreimbursed expenses, I deem
it appropriate to include in the present Decision awarding interim damages.
3

Case 1:13-vv-00487-LAS Document 141 Filed 01/11/18 Page 4 of 4
would in effect pose procedural problems for the Program. I do not find Respondent’s argument
to be persuasive in this case. In this case, the parties have agreed to all damages components but
future lost wages. Resolving that issue may well take another year or even two - but when it finally
is resolved, only one additional judgment will be required. I therefore do not find this concern to
be deserving of great weight under the present circumstances.
Respondent also contends that Petitioner has not provided a sufficient reason or an
immediate need for interim damages. However, this ignored the current status of the case. The
matter has been pending for over four years, and the proper measure of future lost earnings may
not be resolved for some time. In a matter where entitlement was conceded several years ago, it
is unreasonable to require a Vaccine Act claimant to wait to receive damages on matters not in
dispute where a more complex and disputed element of the total sum to be awarded is holding up
the proceedings. It is not my view that interim damages awards should be the norm in the Program,
and I would not be inclined to award them in the majority of cases, and/or simply because it was
taking time for the parties to reach agreement on damages issues. But this case presents proper
grounds for such an award.
CONCLUSION
Based on the above, I find that Petitioner is entitled to an award of interim damages. I
therefore approve a Vaccine Program interim award in the requested amount consisting of a lump
sum of $319,001.36, plus an amount sufficient to purchase the annuity contract described in the
Proffer, to be issued to Petitioner in the form of a check made payable to Petitioner, David
Fairchild. See Court Ex. 1. 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
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.
4

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DOCUMENT 4: USCOURTS-cofc-1_13-vv-00487-3
Date issued/filed: 2018-05-04
Pages: 6
Docket text: **RE-DOCKETED FOR PUBLICATION** JUDGE VACCINE REPORTED OPINION re: 143 Opinion. Signed by Senior Judge Loren A. Smith. (dls) Service on parties made.
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Case 1:13-vv-00487-LAS Document 147 Filed 05/04/18 Page 1 of 6
United States Court of Federal Claims
No. 13-487V
(Filed Under Seal: April 19, 2018)
Reissued: May 4, 20181
)
DAVID FAIRCHILD, )
)
Petitioner, )
)
v. )
Vaccine Case; Motion for Review;
)
Interim Damages
SECRETARY OF THE DEPARTMENT )
OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
OPINION
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Glenn A. MacLeod, Torts Branch, Civil Division, United States Department of Justice,
Washington, D.C., for respondent.
SMITH, Senior Judge:
Respondent, Secretary of the Department of Health and Human Services, seeks review of
a decision issued by Special Master Brian H. Corcoran awarding petitioner, Mr. David Fairchild,
interim damages for vaccine injury compensation. Mr. Fairchild brought this action pursuant to
the National Vaccine Injury Compensation Program, alleging that he suffered from bilateral
brachial plexus neuritis caused by a tetanus vaccine. 42 U.S.C. §§ 300aa-10, et seq. (2012).
Respondent conceded Mr. Fairchild’s entitlement to compensation, and the case proceeded to
calculation of damages. The parties agreed on all elements of the damages, except for the future
lost earnings. As the dispute on future lost earnings is still pending before Special Master
Corcoran, Mr. Fairchild requested an interim award for all the agreed-upon damages. Special
Master Corcoran accordingly ordered an interim award in the requested amount. Respondent
then moved for review of this interim award. For the reasons set forth below, this Court
DENIES respondent’s Motion. Special Master Corcoran’s decision awarding interim damages
is SUSTAINED on the condition that, if Mr. Fairchild elects to receive this interim
compensation under 42 U.S.C. § 300aa-21(a), he cannot later elect to file a civil action under that
same subsection.
1 An unredacted version of this opinion was issued under seal on April 19, 2018. The parties
were given an opportunity to propose redactions, but no such proposals were made.

Case 1:13-vv-00487-LAS Document 147 Filed 05/04/18 Page 2 of 6
I. Background
A brief recitation of the procedural background provides necessary context.2
On July 18, 2013, Mr. Fairchild filed a petition seeking compensation under the National
Vaccine Injury Act (“Vaccine Act”), alleging that he suffered from brachial neuritis as a result of
the tetanus vaccine he received on February 29, 2012. See generally Decision Awarding Interim
Damages (hereinafter “Interim Decision”), ECF No. 133 at 1. Respondent conceded that Mr.
Fairchild was entitled to compensation. See generally Respondent’s Vaccine Rule 4(c) Report,
ECF No. 14. The parties have agreed on all elements of the damages, apart from Mr. Fairchild’s
claim for future lost earnings. See generally Respondent’s Proffer on Award of Compensation,
ECF No. 112; Decision Finding Entitlement and Awarding Damages, ECF No. 113. On April
13, 2017, Special Master Corcoran determined that Mr. Fairchild was not entitled to lost future
earnings. See generally Ruling on Disputed Damages Issue, ECF No. 99. Mr. Fairchild sought
review from this Court, and this Court remanded the case in light of new evidence. See
generally Order Remanding Case to Special Master, ECF No. 128.
On November 22, 2017, Mr. Fairchild filed a motion requesting an interim award of all
undisputed elements of the compensation. See generally Petitioner’s Motion for Interim Award,
ECF No. 130. On November 29, 2017, respondent filed its opposition, contesting both Mr.
Fairchild’s entitlement to an interim compensation award and special masters’ authority to grant
such an award in general. See generally Respondent’s Response to Petitioner’s Motion for
Interim Award, ECF No. 131. On December 1, 2017, Special Master Corcoran granted Mr.
Fairchild’s request for interim award.3 See generally Interim Decision.
Subsequently, respondent filed a motion for review on January 1, 2018. See generally
Respondent’s Motion for Review, ECF No. 138; Respondent’s Memorandum of Objections in
Support of His Motion for Review [hereinafter “R’s Mot.”], ECF No. 139. On January 13, 2018,
Mr. Fairchild responded. See generally Petitioner’s Memorandum in Response to Respondent’s
Motion for Review, ECF No. 142. Respondent’s Motion is fully briefed and ripe for review.
II. Discussion
The sole objection here concerns the following issue of statutory interpretation: whether
the Vaccine Act permits multiple compensation awards upon one petition. R’s Mot. at 2. This
Court reviews such an issue under a “not in accordance with the law” standard. 42 U.S.C.
§ 300aa-12(e)(2)(A)–(C); Euken by Euken v. Sec’y of Dep’t of Health & Human Servs., 34 F.3d
1045, 1047 (Fed. Cir. 1994). It is a de novo standard of review. Id.
2 The basic facts have not changed since Special Master Corcoran’s decision awarding
interim damages. See Decision Awarding Interim Damages, ECF No. 133.
3 On the same day, December 1, 2017, but after Special Master Corcoran filed his decision
approving the request, Mr. Fairchild filed an Amended Motion for Interim Award requesting to
include past, unreimbursed expenses ($31,333.06) into the interim damages award. See generally
Amended Motion for Interim Award, ECF No. 134. Special Master Corcoran denied this amended
motion as moot, as his earlier-in-the-day decision already contained the past, unreimbursed
expenses. See generally Order Denying Amended Motion for Interim Award, ECF No. 135.
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Case 1:13-vv-00487-LAS Document 147 Filed 05/04/18 Page 3 of 6
In determining that Mr. Fairchild was entitled to interim damages, Special Master
Corcoran looked to two past cases in which Special Masters awarded interim injury
compensation. Day v. Sec’y of Dep’t of Health & Human Servs., No. 12-630V, 2016 WL
3457749 (Fed. Cl. Spec. Mstr. May 31, 2016), aff’d, 129 Fed. Cl. 450 (2016); Lerwick v. Sec’y of
Dep’t of Health & Human Servs., No. 06-847V, 2014 WL 1897656 (Fed. Cl. Spec. Mstr. Apr. 6,
2014). Seeking this Court’s review, respondent addresses the issue of statutory interpretation in
three main arguments. The government first argues that the Vaccine Act confers upon special
masters no affirmative basis for awarding interim compensatory damages. R’s Mot. at 6–10.
Second, respondent maintains that the Federal Circuit’s decisions on interim awards of attorneys’
fees are distinguishable because attorneys’ fees are different from injury compensation under the
Vaccine Act. Id. at 11–12. Finally, respondent contends that awarding interim compensation
generates multiple elections and, as a result, frustrates one of the Vaccine Act’s primary
purposes. Id. at 12–19. Each of these arguments will be addressed in turn.
Respondent is correct that special masters may exercise only authorities “grounded in an
express grant from Congress.” Patton v. Sec’y of Dep’t of Health & Human Servs., 25 F.3d
1021, 1027 (Fed. Cir. 1994) (quoting Killip v. Office of Personnel Management, 991 F.2d 1564,
1569 (Fed. Cir. 1993)). Under the Vaccine Act, special masters are authorized to “issue a
decision on [a] petition with respect to whether compensation is to be provided under the
Program and the amount of such compensation.” 42 U.S.C. § 300aa-12(d)(3)(A). This provision
expressly provides special masters with the power to award compensation.
The question then becomes whether the express grant of power to issue “a decision”
encompasses a power to issue more than one decision upon a single petition. Respondent insists
that the phrase “a decision” necessarily means a singular decision, not multiple decisions. R’s
Mot. at 6–10. However, this Court finds that the Dictionary Act demands the opposite
conclusion. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768 (2014) (directing that
courts “must consult” the Dictionary Act in determining the meaning of statutes, unless the
context suggests otherwise). According to the Dictionary Act, “unless the context indicates
otherwise,” “words [in any Act of Congress] importing the singular include and apply to several
persons, parties, or things; . . . .” 1 U.S.C. § 1. As such, the phrase “a decision” in Section
300aa-12(d)(3)(A) of the Vaccine Act includes multiple decisions.
Respondent argues that the Vaccine Act’s “overall context and structure” indicate
otherwise. R’s Mot. at 7. To support this argument, respondent points to several instances
where the Vaccine Act uses “the,” a definite article, and singular words, such as “the amount”
and “such compensation,” in reference to special masters’ compensatory decisions and the
amounts of the pertinent awards. R’s Mot. at 7–8. This Court is not convinced. As a
preliminary matter, “the initial description of ‘a decision’ to be issued shows that the Vaccine
Act is not a statute in which ‘[t]he consistent use of the definite article in reference to
[something] indicates that there is generally only one . . . .’” Day v. Sec’y of Dep’t of Health &
Human Servs., 129 Fed. Cl. 450, 452 (2016) (alterations adopted) (quoting Rumsfeld v. Padilla,
542 U.S. 426, 434 (2004)). Further, since a term preceded by an indefinite article can inherently
carry a plural meaning under the Dictionary Act, any subsequent reference to that term—which
grammatically has to be preceded by a definite article or its equivalent (e.g., such)—inherits the
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Case 1:13-vv-00487-LAS Document 147 Filed 05/04/18 Page 4 of 6
same inherent plurality. This is especially true given that, under the Dictionary Act, any singular
word can include and apply to plural matters, irrespective of what type of article precedes the
word. See 1 U.S.C. § 1. Hence, for the phrase “a decision” in section 300aa-12(d)(3)(A), the
Vaccine Act’s subsequent use of definite articles and singular words does not support a singular
meaning. See Day, 129 Fed. Cl. at 452 (“The mere use of terms in the singular . . . hardly
provides the context for escaping the ambit of the Dictionary Act rule regarding the use of the
singular.”).
Respondent also contends that the Vaccine Act’s legislative purpose shows Congress’
preference to a singular decision upon a petition. In particular, it notes that “[o]ne purpose of the
Vaccine Act is ‘to compensate vaccine-injured individuals quickly, easily, and with certainty and
generosity.’” R’s Mot. at 8 (quoting H.R. Rep. 99-908 at 3 (1986)). In light of this purpose,
respondent reasons that, because “a special master’s injury compensation decision is to be issued
within less than a year from the date the petition is filed, Congress did not see a need for (and
thus did not provide authority for)[] the payment of partial, compensatory damage awards . . . .”
R’s Mot. at 8. Respondent’s calculation, however, is incomplete. Notably, the Vaccine Act
provides various avenues for suspension of proceedings. For example, it states that “[i]n
conducting a proceeding on a petition a special master shall suspend the proceedings one time
for 30 days on the motion of either party,” and “[a]fter a motion for suspension is granted,
further motions for suspension by either party may be granted by the special master, . . . .” 42
U.S.C. § 300aa-12(d)(3)(C). The Vaccine Act also permits review of special masters’ decisions
by this Court, as well as appeal of this Court’s decisions to the Federal Circuit. See 42 U.S.C. §
300aa-12(e)–(f). These procedures consume time. Beyond that, Congress also foresaw the
possibility that a petitioner might choose to continue his or her petition before a special master or
this Court even if the statutory timeframe elapses. See 42 U.S.C. §§ 300aa-12(g), 300aa-21(b).
This Court thus finds it unlikely that Congress did not see a need for interim awards. Therefore,
the “plural decisions” understanding as guided by the Dictionary Act is not undercut by the
context and purpose of the Vaccine Act.
Moreover, such a plural understanding is logically compelled by the Federal Circuit’s
routine authorization of interim attorneys’ fees. Respondent argues that the Federal Circuit’s
precedents in that context does not control this case because attorneys’ fees are different from
injury compensation. R’s Mot. at 11. This argument misses its mark. In Shaw v. Sec’y of Dep’t
of Health & Human Servs., the Federal Circuit held that an interim decision on attorneys’ fees “is
reviewable even when that decision issues prior to a decision on the merits.” 609 F.3d 1372,
1378 (Fed. Cir. 2010); see also Avera v. Sec’y of Dep’t of Health & Human Servs., 515 F.3d
1343 (Fed. Cir. 2008) (“Thus we conclude that the special master and the Court of Federal
Claims erred in holding that an interim fee award is not permissible.”). To reach this conclusion,
the Federal Circuit declared that, “[f]or purposes of jurisdiction under 42 U.S.C. § 300aa-12, a
decision on attorneys’ fees and costs is a decision on compensation.” Shaw, 609 F.3d at 1375.
That declaration instructs this Court to reject respondent’s argument here. In particular,
the Federal Circuit in Shaw establishes that the phrase “a decision . . . with respect
to . . . compensation” in Section 300aa-12(d)(3)(A) encompasses interim decisions on attorneys’
fees. Id. This logically leads to the conclusion that “a decision” does not mean “a single
decision” because, in addition to a decision on attorneys’ fees, there has to be at least one
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Case 1:13-vv-00487-LAS Document 147 Filed 05/04/18 Page 5 of 6
decision on entitlement to compensation. If respondent’s “singular decision” understanding was
correct, section 300aa-12(d)(3)(A) would not allow for the opportunity to issue a decision on
attorneys’ fees—only a single decision on compensation would be permitted. Therefore,
respondent’s “singular decision” theory conflicts with Federal Circuit’s precedent and cannot be
accepted. See Day, 129 Fed. Cl. at 452 (reasoning that, after Shaw, “no one questions the
authority of our Court to review the subsequent decision regarding compensatory damages, and
thus ‘the decision’ reviewable by our Court under subsections 12(d)(3)(A) and 12(e) cannot be
limited to just one”).
Last but not least, respondent maintains that multiple compensation decisions would lead
to multiple judgments and, in turn, multiple elections under 42 U.S.C. § 300aa-21(a). R’s Mot.
at 15. Respondent is concerned that multiple elections would allow claimants to “seek monetary
recovery from both the Vaccine Program, and a vaccine administrator or manufacturer, thus
undermining a central purpose of the Vaccine Act.” Id. at 18. Mr. Fairchild, who has not
disclaimed any intention to reject any future damages awards, could conceivably elect to receive
this interim damages award and later, should he find Special Master Corcoran’s final decision
unsatisfactory, elect to file a civil action against the relevant vaccine administrator or
manufacturer for lost future earnings. R’s Mot. at 16–17. In essence, respondent is concerned
that Mr. Fairchild could cherry-pick Special Master Corcoran’s compensation decisions, thus
exposing vaccine manufacturers and administrators to further civil actions.
This concern is understandable, but can be resolved. “[A] simple expedient [solution]—
such as a direction that the Clerk not file any such election once a petitioner has filed an election
to accept interim damages—would prevent such strategic behavior from succeeding.” Day, 129
Fed. Cl. at 453. This solution is consistent with the Federal Circuit’s nonprecedential order in
Tembenis v. Sec’y of Dep’t of Health & Human Servs., No. 2013-5029, Order (Fed. Cir. May 16,
2013). In Tembenis, the Federal Circuit saw no problem with awarding an uncontested portion
of injury compensation when the remainder was still in dispute. Id. at 4–6. There, this Court
entered a judgment awarding the petitioners $1,084,955.61 including lost future earnings, and the
petitioners filed an election to accept the judgment. Id. at 4. The government then appealed,
challenging only the amount of $659,955.11 awarded for lost future earnings. Id. The
petitioners thereupon “move[d] for partial summary affirmance in order to immediately receive
the $250,000 in death benefits and $175,000 for pain and suffering and expenses rather than
waiting until the end of the government’s appeal regarding lost earnings.” Id. The Federal
Circuit granted the petitioners’ motion to effectuate the Vaccine Act’s “intended purpose of
compensating ‘injured persons quickly and fairly.’” Id. at 5.
As particularly pertinent here, the Federal Circuit in Tembenis rejected the government’s
multiple-election concern, reasoning that “once a petitioner has elected to accept the judgment,
he or she has accepted it for all compensation purposes relating to that petition.” Id. at 6
(emphasis added). As such, since the petitioners there had made an election, they have yielded
the right to sue in civil actions for any portion of the petitioned compensation, including the one
still pending before the Federal Circuit at the time. Likewise here, Special Master Corcoran’s
decision can be sustained on the condition that, if Mr. Fairchild files an election to receive this
interim compensation under 42 U.S.C. § 300aa-21(a)(1), he will not be permitted to file a
subsequent election to pursue a civil action under 42 U.S.C. § 300aa-21(a). See Day, 129 Fed.
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Case 1:13-vv-00487-LAS Document 147 Filed 05/04/18 Page 6 of 6
Cl. at 454 (“The Clerk shall enter judgment awarding petitioners interim compensation in
accordance with that decision[; ][i]f petitioners file an election to receive this compensation
under 42 U.S.C. § 300aa-21(a)(1), they will not be permitted to file a subsequent election to file
a civil action under that subsection.”). In other words, Mr. Fairchild will have to “accept[] [this
interim award] for all compensation purposes relating to [his] petition.” Tembenis, No. 2013-
5029, Order, at 6.
Respondent believes that the Federal Circuit’s order in Tembenis is inapposite because,
while this case will involve multiple judgments and elections, Tembenis dealt only with one
judgment and one election. R’s Mot. at 12–14. This distinction is irrelevant, however. What is
relevant is that the sole election in Tembenis bound the petitioners in that case not to file any
civil action upon a judgment that the Federal Circuit was still considering. See Tembenis, No.
2013-5029, Order, at 7 (“The petitioners’ election to accept the judgment [on undisputed
damages] rather than file a civil action shall also govern any [disputed] lost earnings
compensation.”). Accordingly, this Court can also order that Mr. Fairchild’s election to accept
this interim award—if he files one—effectively binds him not to elect to pursue a civil action on
the remainder of the judgment that Special Master Corcoran is still considering. Such an
approach is indeed authorized by the Vaccine Act, as it states that this Court “may issue and
enforce such orders as the court deems necessary to assure the prompt payment of any
compensation awarded.” 42 U.S.C. § 300aa-12(a).
III. Conclusion
For the foregoing reasons, respondent’s Motion for Review is DENIED. Special Master
Corcoran’s decision awarding Mr. Fairchild interim compensation is SUSTAINED on the
condition that, if Mr. Fairchild files an election to accept this interim compensation under 42
U.S.C. § 300aa-21(a)(1), he will not be permitted to file a subsequent election to pursue a civil
action under 42 U.S.C. § 300aa-21(a).4 The Clerk is directed to enter judgement on interim
damages in favor of petitioner, consistent with this opinion.
IT IS SO ORDERED.
Loren A. Smith
s/
Loren A. Smith,
Senior Judge
4 This order shall be unsealed, as issued, after May 3, 2018, unless the parties, pursuant to
Vaccine Rule 18(b), identify protected and/or privileged materials subject to redaction prior to that
date. Said materials shall be identified with specificity, both in terms of the language to be redacted
and the reasons therefor.
- 6 -

================================================================================
DOCUMENT 5: USCOURTS-cofc-1_13-vv-00487-4
Date issued/filed: 2019-10-28
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 09/20/2019) regarding 166 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:13-vv-00487-LAS Document 175 Filed 10/28/19 Page 1 of 5
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 DAMAGES1
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).

Case 1:13-vv-00487-LAS Document 175 Filed 10/28/19 Page 2 of 5
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

Case 1:13-vv-00487-LAS Document 175 Filed 10/28/19 Page 3 of 5
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

CCaassee 11::1133--vvvv--0000448877--LLAASS DDooccuummeenntt 116745 FFiilleedd 0190//1208//1199 PPaaggee 14 ooff 25
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.

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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
2

================================================================================
DOCUMENT 6: USCOURTS-cofc-1_13-vv-00487-5
Date issued/filed: 2019-11-18
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 09/20/2019) regarding 166 DECISION Stipulation/Proffer, Signed by Chief Special Master Brian H. Corcoran. (bm) Service on parties made.
--------------------------------------------------------------------------------
Case 1:13-vv-00487-LAS Document 176 Filed 11/18/19 Page 1 of 5
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 DAMAGES1
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).

Case 1:13-vv-00487-LAS Document 176 Filed 11/18/19 Page 2 of 5
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 August 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

Case 1:13-vv-00487-LAS Document 176 Filed 11/18/19 Page 3 of 5
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

CCaassee 11::1133--vvvv--0000448877--LLAASS DDooccuummeenntt 116746 FFiilleedd 0191//1108//1199 PPaaggee 14 ooff 25
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.

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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
2