Judges: Laura D Millman
Filed: Jul. 11, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-551V Filed: June 20, 2016 Not for Publication ************************************* PATRICK J. AGNEW and CONSTANCE * M. AGNEW, Parents of R.P.A., a Minor, * * Petitioners, * Damages decision based on * proffer; Flu Mist vaccine; acute v. * hepatitis; liver failure * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Tatiana Cody, Kelly Marco, Maureen Urbina, Washington,
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-551V Filed: June 20, 2016 Not for Publication ************************************* PATRICK J. AGNEW and CONSTANCE * M. AGNEW, Parents of R.P.A., a Minor, * * Petitioners, * Damages decision based on * proffer; Flu Mist vaccine; acute v. * hepatitis; liver failure * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Tatiana Cody, Kelly Marco, Maureen Urbina, Washington, D..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-551V
Filed: June 20, 2016
Not for Publication
*************************************
PATRICK J. AGNEW and CONSTANCE *
M. AGNEW, Parents of R.P.A., a Minor, *
*
Petitioners, * Damages decision based on
* proffer; Flu Mist vaccine; acute
v. * hepatitis; liver failure
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Tatiana Cody, Kelly Marco, Maureen Urbina, Washington, DC, for petitioners.
Alexis B. Babcock, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES 1
On August 30, 2012, petitioners filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012), alleging that their son, R.P.A. suffered the sudden
onset of acute hepatitis as a result of the Flu Mist vaccination he received on September 28, 2009.
Petitioners alleged that because of his acute hepatitis, R.P.A. suffered liver failure and underwent a
liver transplantation on October 26, 2009. The undersigned held an entitlement hearing on
October 20, 2015, and issued a Ruling on Entitlement finding for petitioners on March 30, 2016.
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Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision 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). Vaccine Rule 18(b) states that all
decisions of the special masters will be made available to the public unless they contain trade secrets or
commercial or financial information that is privileged and confidential, or medical or similar information
whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is
filed, petitioner has 14 days to identify and move to redact such information prior to the document=s
disclosure. If the special master, upon review, agrees that the identified material fits within the banned
categories listed above, the special master shall redact such material from public access.
On June 20, 2016, respondent filed Respondent’s Proffer of Damages. The undersigned
finds the terms of the proffer to be reasonable. Based on the record as a whole, the undersigned
finds that petitioners are entitled to the award as stated in the proffer. Pursuant to the attached
proffer, the court awards:
a. A lump sum payment of $234,408.00, representing compensation for pain and suffering
($225,000.00), and future medical expenses ($9,408.00), in the form of a check payable to
petitioners as guardians/conservators of R.P.A., for the benefit of R.P.A.; and
b. A lump sum payment of $43,752.63, representing compensation for past unreimbursable
expenses, payable to Patrick Agnew and Constance Agnew, petitioners.
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. 2
IT IS SO ORDERED.
Dated: June 20, 2016 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF THE SPECIAL MASTERS
PATRICK J. AGNEW and CONSTANCE )
M. AGNEW, Parents of R.P.A., a Minor, )
)
Petitioners, )
) No. 12-551V
v. ) Special Master Millman
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
RESPONDENT’S PROFFER OF DAMAGES
I. Items of Compensation
For the purposes of this proffer, the term “vaccine-related” is as described in
Respondent’s Rule 4(c) Report filed on November 9, 2015. This proffer contains all elements of
compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 1
A. Pain and Suffering
Respondent proffers that R.P.A. should be awarded $225,000.00 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 Unreimbursed Expenses
Petitioners have submitted documentation for $43,752.63 in unreimbursed expenses in
this case, to which respondent has no objection. Thus respondent proffers that petitioners should
be awarded $43,752.63 for past unreimbursed expenses. Petitioners agree.
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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 medical
expenses, future lost earnings, and future pain and suffering.
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C. Future Medical Expenses
Respondent proffers that petitioners are entitled to $9,408.00 to pay for two ongoing
medications which will be required for the rest of R.P.A.’s life. Petitioners agree.
D. Lost Wages
The parties agree that based upon the evidence of record, R.P.A.’s vaccine-related injury
has not impaired his earning capacity. Therefore, respondent proffers that petitioners should be
awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-
15(a)(3)(A). Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through the following payments:
A. A lump sum payment of $234,408.00, representing compensation for pain and
suffering ($225,000.00), and future medical expenses ($9,408.00), in the form of a check payable
to petitioners as guardians/conservators of R.P.A., for the benefit of R.P.A. No payments shall
be made until petitioners provide respondent with documentation establishing that they have
been appointed as the guardians/conservators of R.P.A.’s estate;
B. A lump sum payment of $43,752.63 representing compensation for past
unreimbursable expenses, payable to Patrick Agnew and Constance Agnew, petitioners;
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
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CATHARINE E. REEVES
Acting Deputy Director
Tort Branch, Civil Division
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
s/ Alexis B. Babcock
ALEXIS B. BABCOCK
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Dated: June 20, 2016 Telephone: (202) 616-7678
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