Leming v. Secretary of Health and Human Services
This text of Leming v. Secretary of Health and Human Services (Leming v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-232V UNPUBLISHED
VICTORIA LEMING and KEVIN Chief Special Master Corcoran LEMING, Parents and Natural Guardians of A.L., a Minor,, Filed: February 23, 2021
Petitioners, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Diphtheria-tetanus-acellular pertussis SECRETARY OF HEALTH AND (DTaP) Vaccine; Measles-mumps- HUMAN SERVICES, rubella-varicella (MMRV) Vaccine; Haemophilus influenzae type b (Hib) Respondent. vaccine; Thrombocytopenic Purpura (ITP)
Robert Joel Krakow, Law Office of Robert J. Krakow, P.C. New York, NY, for Petitioners.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES 1
On February 14, 2018, Victoria and Kevin Leming filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioners allege that a measles-mumps-rubella-varicella (“MMRV”), a diphtheria-tetanus-acellular pertussis (“DTaP”), and/or a Haemophilus influenzae type b (“Hib”) vaccine that A.L. received on September 6, 2016, caused her to suffer from immune thrombocytopenic purpura (“ITP”), immune dysfunction, and immunodeficiency. Petition at 1. 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). On November 4, 2020, a ruling on entitlement was issued, finding Petitioners entitled to compensation for A.L.’s ITP. On February 18, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating that A.L. should be awarded $35,000.00 in actual and projected pain and suffering, and that Petitioners should be awarded past unreimbursable expenses in the amount of $5,992.89. Proffer at 2. In the Proffer, Respondent represented that Petitioners agree with the proffered award. Id. Based on the record as a whole, I find that A.L. and Petitioners are entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award the following compensation:
• A lump sum payment of $35,000.00, representing pain and suffering, in the form of a check payable to Petitioners as guardian(s)/conservator(s) of A.L., for the benefit of A.L. • A lump sum payment of $5,992.89 representing compensation for past unreimbursable expenses, in the form of a check payable to Petitioners.
This amount represents compensation for all damages that would be available under § 15(a).
The clerk of the 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 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ____________________________________ ) VICTORIA LEMING and KEVIN ) LEMING, Parents and Natural ) Guardians of A.L., a Minor, ) No. 18-232V ) Chief Special Master Corcoran Petitioners, ) SPU ) v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On February 15, 2018, Victoria Leming and Kevin Leming (“petitioners”), as parents and
natural guardians on behalf of A.L., a minor, filed a petition for compensation under the National
Vaccine Injury Compensation Program. See 42 U.S.C. §§ 300aa-10 to -34 (“Vaccine Act” or
“Act”). Petitioners allege that a measles-mumps-rubella-varicella (“MMRV”), a diphtheria-
tetanus-acellular pertussis (“DTaP”), and/or a Haemophilus influenzae type b (“Hib”) vaccine
that A.L. received on September 6, 2016, caused her to suffer from immune thrombocytopenic
purpura (“ITP”), immune dysfunction, and immunodeficiency. On July 12, 2019, the Special
Master issued a Ruling on Facts, finding that “petitioners have established A.L.’s alleged injury
meets the severity requirement described in §300aa-11(c)(1)(D) of the Vaccine Act.” On
November 2, 2020, respondent filed his Amended Vaccine Rule 4(c) report, preserving his right
to appeal the Special Master’s July 12, 2019, Ruling on Facts, and submitting that petitioner has
otherwise satisfied the legal prerequisites for compensation under the Vaccine Act. See 42
U.S.C. §§ 300aa-11(c)(1)(D), 300aa-13(a)(1). On November 4, 2020, the Chief Special Master
-1- issued a Ruling on Entitlement finding petitioner entitled to compensation.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that A.L. should be awarded $35,000.00 in actual and projected pain
and suffering. This amount reflects that the award for projected pain and suffering has been
reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
B. Past Unreimbursable Expenses
Evidence supplied by petitioners documents their expenditure of past unreimbursable
expenses related to A.L.’s vaccine-related injury. Respondent proffers that petitioners should be
awarded past unreimbursable expenses in the amount of $5,992.89. Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to A.L. and petitioners should be
made through lump sum payments as described below, and request that the special master’s
decision and the Court’s judgment award the following1:
A. A lump sum payment of $35,000.00, representing pain and suffering, in the form of a
check payable to petitioners as guardian(s)/conservator(s) of A.L., for the benefit of A.L. No
payments shall be made until petitioners provide respondent with documentation establishing
that they have been appointed as the guardian(s)/conservator(s) of A.L.’s estate. If petitioners
are not authorized by a court of competent jurisdiction to serve as guardian(s)/conservator(s) of
the estate of A.L., any such payment shall be made to the party or parties appointed by a court of
1 Should A.L. die prior to the entry of judgment, the parties reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses and future pain and suffering.
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