B. v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1034V UNPUBLISHED

B.B. on behalf of B.S., a minor child, Chief Special Master Corcoran

Petitioner, Originally Filed: March 25, 2022 v. Refiled in Redacted Form: June 28, 2022 SECRETARY OF HEALTH AND HUMAN SERVICES, Special Processing Unit (SPU); Damages Decision Based on Proffer; Respondent. Rotavirus Vaccine; Intussusception

Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

Madelyn Weeks, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On March 5, 2021, B.B., on behalf of B.S., a minor child, 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 B.S. suffered intussusception as a result of receiving a rotavirus vaccination on August 10, 2018. Petition at 1-2. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On January 18, 2022, a ruling on entitlement was issued, finding Petitioner entitled to compensation for intussusception. On March 16, 2022, Respondent filed a proffer on award of compensation (“Proffer”) indicating that B.S. should be awarded $54,060.00 comprised of $50,000.00 for pain and suffering payable to Petitioner as guardian/conservator of B.S.’s estate and $4,060.00 for past unreimbursable expenses payable to Petitioner. Proffer at 1-2. In the Proffer, Respondent represented that

1 When this decision was originally filed, I advised my intent 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). In accordance with Vaccine Rule 18(b), Petitioner filed a timely motion to redact certain information. This decision is being reissued with the requested redactions. Except for those changes and this footnote, no other substantive changes have been made. This decision will be posted on the court’s website with no further opportunity to move for redaction.

2National 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). 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 two lump sum payments as described below:

(1) A lump sum payment of $50,000.00 in the form of a check payable to petitioner as guardian/conservator of B.S.’s estate3; and (2) A lump sum payment of $4,060.00 in the form of a check payable to Petitioner.

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.4

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

3Pursuant to the Proffer, no payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of B.S.’s estate. Proffer at 2.

4 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 B. Past Unreimbursable Expenses

Evidence supplied by petitioner documents that she incurred past unreimbursable

expenses related to B.S.’s vaccine-related injury. Respondent proffers that petitioner should be

awarded past unreimbursable expenses in the amount of $4,060.00. See 42 U.S.C. § 300aa-

15(a)(1)(B).

III. Form of the Award

Respondent recommends that the compensation provided to petitioner be made through

two lump sum payments, as described below:

(1) A lump sum payment of $50,000.00 in the form of a check payable to petitioner as guardian/conservator of B.S.’s estate.1 No payments shall be made until petitioner provides respondent with documentation establishing that she has been appointed as the guardian/conservator of B.S.’s estate; and

(2) A lump sum payment of $4,060.00 in the form of a check payable to petitioner.

Respectfully submitted,

BRIAN M. BOYNTON Principal Deputy Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

HEATHER PEARLMAN Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

1 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief.

2 s/ MADELYN E. WEEKS MADELYN E. WEEKS Trial Attorney Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46 Benjamin Franklin Station Washington, D.C. 20044-0146 Phone: (202) 451-7312 madelyn.e.weeks@usdoj.gov

Dated: March 16, 2022