Interim Damages – Pain and Suffering $250,000


Day v. HHS, (Fed. Cl. Spec. Mstr. May 21, 2016) (Dorsey, CSM)

(Ed. Note – this was my case, and HHS has appealed)

An entitlement decision had been issued in this neuromyelitis optica post Gardasil case, involving a very significantly disabled teenager. The life care planning process was ongoing, but the family circumstances were desperate: divorce, bankruptcy, loss of housing, difficulty supporting four children, and the child’s impending age of majority and need to be self-supporting, for ADA housing, for a wheelchair vehicle, etc.

I moved for interim damages, and requested that the full lost wage award be made, as this number was not in dispute. DOJ would not take a position on pain and suffering, but I suggested $250,000 was appropriate.

The court agreed and awarded the $250,000. She did not award the lost wages, even though the amount was not in dispute, because this amount would not be recoverable if the child were to die before the entry of judgment.

Respondent argued that the language of the Vaccine Act does not permit special masters to award interim damages, and they cannot be analogized to interim fee awards. There is only one other decision awarding interim damages in the history of the program (Heinzelman). The Court disagreed and found that the Act does implicitly allow interim damage awards.

In awarding interim damages, the court cautioned that this decision does not contemplate that interim damages would be routinely or even frequently awarded, but in this case, petitioners have made a persuasive case that there is extreme hardship and that accordingly, the purpose of the Vaccine Act is better fulfilled by making the interim award.

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