Judges: Brian H. Corcoran
Filed: Apr. 14, 2020
Latest Update: Apr. 15, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1114V UNPUBLISHED NICOLE HARDER, as Parent and Chief Special Master Corcoran Legal Representative of Her Minor Son, J.A.H., Filed: March 12, 2020 Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Rotavirus Vaccine; Intussusception SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Glen Sturtevant, Jr., Rawls Law Group, Richmond, VA, for petitioner. Mark Hellie, U.S. Department of Justice
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1114V UNPUBLISHED NICOLE HARDER, as Parent and Chief Special Master Corcoran Legal Representative of Her Minor Son, J.A.H., Filed: March 12, 2020 Petitioner, Special Processing Unit (SPU); v. Damages Decision Based on Proffer; Rotavirus Vaccine; Intussusception SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Glen Sturtevant, Jr., Rawls Law Group, Richmond, VA, for petitioner. Mark Hellie, U.S. Department of Justice,..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1114V
UNPUBLISHED
NICOLE HARDER, as Parent and Chief Special Master Corcoran
Legal Representative of Her Minor
Son, J.A.H., Filed: March 12, 2020
Petitioner, Special Processing Unit (SPU);
v. Damages Decision Based on Proffer;
Rotavirus Vaccine; Intussusception
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Glen Sturtevant, Jr., Rawls Law Group, Richmond, VA, for petitioner.
Mark Hellie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On July 31, 2019, Nicole Harder filed a petition for compensation on behalf of her
minor son, J.A.H., under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that her son suffered an
intussusception that required surgical intervention as a result of a rotavirus vaccination
on September 19, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On January 16, 2020, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for intussusception. On March 9, 2020, Respondent filed a
proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
2National 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).
$4,087.04 for past unreimbursable expenses and an amount sufficient to purchase an
annuity contract as described in Proffer Section II.B.. Proffer at 2. In the Proffer,
Respondent represented that Petitioner agrees with the proffered award. Id. at 3.
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 the following:
• A lump sum payment of $ 4,087.04 in the form of a check payable to
Petitioner for past unreimbursable vaccine-related medical expenses.
This amount represents all elements of compensation to which J.A.H. would
be entitled under § 300aa-15(a)(1)(B);
• An amount sufficient to purchase the annuity contract described in the
Proffer Section II.B. This amount represents all remaining elements of
compensation to which J.A.H. would be entitled under § 300aa-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
__________________________________________
)
NICOLE HARDER, as Parent and Legal )
Representative of Her Minor Son, J.A.H., )
)
Petitioner, ) No. 19-1114V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER OF DAMAGES
I. Procedural History
On January 3, 2020, respondent filed a Vaccine Rule 4(c) report concluding that J.A.H.
suffered an injury that is compensable under the National Childhood Vaccine Injury Act of
1986, as amended, 42 U.S.C. §§ 300aa-10 to -34. Accordingly, on February 19, 2020, the
Chief Special Master issued a Ruling on Entitlement, finding that J.A.H. developed
intussusception as a result of receiving a rotavirus vaccine administered on September 19,
2018.
II. Items of Compensation and Form of the Award
Based upon the evidence of record, respondent proffers, and the parties recommend, that
compensation be made through a lump sum and future annuity payments as described below, and
request that the Chief Special Master's decision and the Court's judgment award the following:1
1
Should J.A.H. 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.
1
A. Past Unreimbursable Expenses
Evidence supplied by petitioner documents her expenditure of past unreimbursable
expenses related to J.A.H.'s vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $4,087.04. Petitioner agrees.
B. Annuity
An amount sufficient to purchase an annuity contract,2 paid to the life insurance
company3 from which the annuity will be purchased,4 subject to the conditions described below,
that will provide payments to J.A.H. as set forth below:
1. $17,275.04 payable in a certain lump sum on 05/14/2039.
2. $18,729.05 payable in a certain lump sum on 05/14/2042.
3. $20,146.26 payable in a certain lump sum on 05/14/2045.
Should J.A.H. predecease any of the certain payments set forth above, any remaining certain
payments shall be made to his estate. Written notice to the Secretary of Health and Human
Services and to the Life Insurance Company shall be provided within twenty (20) days of
J.A.H.’s death.
2
In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life
insurance companies.
3
The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any
mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from
two of the following rating organizations:
a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;
b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;
c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or
AAA;
d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA,
AA+, or AAA.
4
Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent with the
Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of
Records, No. 09-15-0056.
2
This amount represents all elements of compensation to which J.A.H. would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.5
III. Summary of Recommended Payments Following Judgment
A. Past unreimbursable expenses: $4,087.04
B. An amount sufficient to purchase the annuity contract described
above in section II. B.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
Torts Branch, Civil Division
/s/Mark K. Hellie
MARK K. HELLIE
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) 616-4208
Dated: March 9, 2020
5
At the time payment is received, J.A.H. will be an adult, and thus guardianship is not required.
3
