VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-02135 Package ID: USCOURTS-cofc-1_21-vv-02135 Petitioner: Sally Jo Bennett Filed: 2021-11-05 Decided: 2023-04-17 Vaccine: influenza Vaccination date: 2019-10-04 Condition: Guillain-Barré Syndrome (GBS) Outcome: compensated Award amount USD: 380500 AI-assisted case summary: Debbie L. Aretz, as Personal Representative of the Estate of Sally Jo Bennett, filed a petition for compensation under the National Vaccine Injury Compensation Program. Petitioner alleged that Sally Jo Bennett received an influenza vaccine on October 4, 2019, and subsequently suffered from Guillain-Barré Syndrome (GBS), which met the Table definition for GBS. Petitioner also alleged that Ms. Bennett passed away due to her GBS injury. The case was assigned to the Special Processing Unit. Respondent filed a Rule 4(c) report conceding that Petitioner is entitled to compensation, finding that the injury met the criteria set forth in the Vaccine Injury Table. A ruling on entitlement was issued on January 18, 2023, finding Petitioner entitled to compensation. Subsequently, Respondent filed a proffer on award of compensation, proposing an award of $380,500.00, which included $250,000.00 for the death benefit, $127,500.00 for pain and suffering, and $3,000.00 for lost wages. Petitioner agreed with the proffered award. The Chief Special Master issued a decision awarding Petitioner the lump sum of $380,500.00. Theory of causation field: Table Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_21-vv-02135-0 Date issued/filed: 2023-02-17 Pages: 2 Docket text: PUBLIC ORDER/RULING (Originally filed: 01/18/2023) regarding 26 Ruling on Entitlement ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02135-UNJ Document 29 Filed 02/17/23 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2135V UNPUBLISHED DEBBIE L. ARETZ, as Personal Chief Special Master Corcoran Representative of the ESTATE OF SALLY JO BENNETT, DECEASED, Filed: January 18, 2023 Petitioner, Special Processing Unit (SPU); v. Ruling on Entitlement; Concession; Table Injury; Influenza (Flu) Vaccine; SECRETARY OF HEALTH AND Guillain-Barre Syndrome (GBS) HUMAN SERVICES, Respondent. Gary A. Butler, Massa, Butler, Giglione, Pittsburgh, PA, for Petitioner. Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 5, 2021, Debbie L. Aretz, as Personal Representative of the Estate of Sally Jo Bennett, deceased, filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that Ms. Bennett, suffered Guillain-Barré Syndrome (“GBS”) which meets the Table definition for GBS or, in the alternative, was caused-in-fact by the influenza (“flu”) vaccine she received on October 4, 2019. Petition at 1, ¶¶ 2, 10, 12-13, 44. Petitioner also alleges that Ms. Bennett received the flu vaccine within the United States, that he passed away due to her GBS injury, and that neither she nor any other 1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to 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 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:21-vv-02135-UNJ Document 29 Filed 02/17/23 Page 2 of 2 party has filed a civil action or received compensation for his GBS. Id. at ¶¶ 2, 45, 48-49. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 17, 2023, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent believes “that [P]etitioner has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to interpretation (“QAI”).” Id. at 5. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_21-vv-02135-1 Date issued/filed: 2023-04-17 Pages: 5 Docket text: PUBLIC DECISION (Originally filed: 03/16/2023) regarding 32 DECISION Stipulation/Proffer ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:21-vv-02135-UNJ Document 35 Filed 04/17/23 Page 1 of 5 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2135V UNPUBLISHED DEBBIE L. ARETZ, as Personal Chief Special Master Corcoran Representative of the ESTATE OF SALLY JO BENNETT DECEASED, Filed: March 16, 2023 Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Influenza (Flu) Vaccine; Guillain- SECRETARY OF HEALTH AND Barre Syndrome (GBS) HUMAN SERVICES, Respondent. Gary A. Butler, Massa, Butler, Giglione, Pittsburgh, PA, for Petitioner. Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On November 5, 2021, Debbie L. Aretz, as Personal Representative of the Estate of Sally Jo Bennett, deceased, filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that Ms. Bennett, suffered Guillain-Barré Syndrome (“GBS”) which meets the Table definition for GBS or, in the alternative, was caused-in-fact by the influenza (“flu”) vaccine she received on October 4, 2019. Petition at 1, ¶¶ 2, 10, 12-13, 44. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to 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 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:21-vv-02135-UNJ Document 35 Filed 04/17/23 Page 2 of 5 On January 18, 2023, a ruling on entitlement was issued, finding Petitioner entitled to compensation for Ms. Bennett’s GBS injury. On March 16, 2023, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $380,500.00, representing compensation in the amounts of $250,000.00 for the Vaccine Act’s death benefit, $127,500.00 for pain and suffering, and $3,000.00 for lost wages. Proffer at 2. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $380,500.00, representing compensation in the amounts of $250,000.00 for the Vaccine Act’s death benefit, $127,500.00 for pain and suffering, and $3,000.00 for lost wages in the form of a check payable to Debbie L. Aretz, as Personal Representative of the Estate of Sally Jo Bennett, desceased. This amount represents compensation for all damages that would be available under Section 15(a). The Clerk of Court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 Case 1:21-vv-02135-UNJ Document 35 Filed 04/17/23 Page 3 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS __________________________________________ ) DEBBIE L. ARETZ, as Personal Representative ) of the ESTATE OF SALLY JO BENNETT, ) deceased, ) ) Petitioner, ) ) No. 21-2135V (ECF) v. ) Chief Special Master Corcoran ) SECRETARY OF HEALTH ) AND HUMAN SERVICES, ) ) Respondent. ) __________________________________________) PROFFER ON AWARD OF COMPENSATION1 I. Procedural History On November 5, 2021, Debbie L. Aretz (“petitioner”), as personal representative of the estate of Sally Jo Bennett, filed a petition for compensation (“petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, as amended. She alleges that, as a result of receiving the influenza vaccine on October 4, 2019, Ms. Bennett suffered from Guillain-Barre Syndrome (“GBS”) and death. See Petition. On January 17, 2023, respondent filed his Vaccine Rule 4(c) report, concluding that petitioner suffered GBS as defined by the Vaccine Injury Table, within the Table timeframe. On January 18, 2023, Chief Special Master Corcoran issued a ruling on entitlement, finding that petitioner was entitled to compensation for a GBS Table injury. 1 This Proffer does not include attorneys’ fees and costs, which the parties intend to address after the Damages Decision is issued. Case 1:21-vv-02135-UNJ Document 35 Filed 04/17/23 Page 4 of 5 II. Items of Compensation Based upon the evidence of record, respondent proffers that petitioner, as personal representative of the estate of Sally Jo Bennett, should be awarded a lump sum of $380,500.00, for all damages, including $250,000.00 representative of the death benefit, $127,500.00 representative of pain and suffering, and $3,000.00 representative of lost wages. This amount represents all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa- 15(a). Petitioner agrees. III. Form of the Award Respondent recommends that the compensation provided to petitioner, as personal representative of the estate of Sally Jo Bennett, should be made through a lump sum payment, as described below, and requests that the Chief Special Master’s decision and the Court’s judgment award the following: A lump sum payment of $380,500.00 in the form of a check payable to petitioner, as personal representative of the estate of Sally Jo Bennett.2 Petitioner agrees. Respectfully submitted, BRIAN M. BOYNTON Principal Deputy Assistant Attorney General C. SALVATORE D’ALESSIO Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division 2 Should petitioner die prior to entry of judgment, respondent reserve the right to move the Court for appropriate relief. 2 Case 1:21-vv-02135-UNJ Document 35 Filed 04/17/23 Page 5 of 5 ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Kyle E. Pozza_____________ KYLE E. POZZA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 Tel: (202) 616-3661 E-mail: Kyle.Pozza@usdoj.gov Dated: March 16, 2023 3 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_21-vv-02135-cl-extra-10736717 Date issued/filed: 2023-12-18 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10270127 -------------------------------------------------------------------------------- In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-2135V DEBBIE L. ARETZ, as Personal Representative of the ESTATE OF Chief Special Master Corcoran SALLY JO BENNETT DECEASED, Filed: November 15, 2023 Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Gary A. Butler, Massa, Butler, Giglione, Pittsburgh, PA, for Petitioner. Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On November 5, 2021, Debbie L. Aretz, as Personal Representative of the Estate of Sally Jo Bennett, deceased, filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that Ms. Bennett suffered Guillain-Barré syndrome due to an influenza vaccine she received on October 4, 2019. Petition, ECF No. 1. On March 16, 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other inf ormation, the disclosure of which would constitute an unwarranted invasion of privacy. If , upon review, I agree that the identified material fits within this definition, I will redact such material f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 32. Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $40,353.37 (representing $37,128.30 in fees plus $3,225.07 in costs). Petitioner’s Application for Fees and Costs (“Motion”) filed Sept. 1, 2023, ECF No. 38. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that Petitioner incurred no out-of-pocket expenses. ECF No. 38-3. Respondent reacted to the fees request on Sept. 5, 2023, reporting that Petitioner’s motion seeks $2,500.00 in costs to establish the Estate of Sally Jo Bennett but questioning whether this expense was reasonable and necessary, reporting that the documentation for this expense does not delineate how time was incurred in establishing the estate. ECF No. 39 at 1-2. Respondent is otherwise satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case, however, deferring resolution of the amount to be awarded to my discretion. Id. at 2. On Sept. 7, 2023, Petitioner filed a reply with additional documentation to substantiate the estate costs requested herein. ECF No. 40. As noted in the reply and subsequent invoices, Petitioner now seeks a total of $2,022.25 in costs related to establishing the Estate, thereby reducing the total amount of litigation costs to be recovered by $477.75. Id. at 2. The attorney rates and time requested in this matter are reasonable, and so the only possibly-contested issue is the propriety of the estate-related costs. As has been noted in prior Program decisions, “[s]pecial masters generally award the reasonable costs of establishing an estate and appointing a representative,” but not costs which are excessive or related to the subsequent administration of the estate. Fulling v. Sec’y of Health & Hum. Servs., No. 18-1549V, 2022 WL 3023505, at *3 (Fed. Cl. Spec. Mstr. July 11, 2022); accord. Durand v. Sec’y of Health & Hum. Servs., No. 15-1153V, 2020 WL 639372, at *6-7 (Fed. Cl. Spec. Mstr. Jan. 16, 2020). I have reviewed the billing records submitted with Petitioner’s request and find them to be reasonable. Thus, I hereby grant Petitioner’s request for reimbursement of costs in the amount of $2,022.25 related to establishing the Estate of Sally Jo Bennett. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $39,875.62 (representing $37,128.30 in fees plus $2,747.32 in costs) as a lump sum in the form of a check jointly payable to 2 Petitioner and Petitioner’s counsel, Gary A. Butler. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 3