Filed: Aug. 12, 2015
Latest Update: Aug. 12, 2015
Summary: DECISION AWARDING DAMAGES 1 DENISE K. VOWELL , Chief Special Master . On October 31, 2014, Miranda Werner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, et seq, 2 [the "Vaccine Act" or "Program"] on behalf of her minor child, P.M.S. The petition alleges that as a result of a rotavirus, polio, pneumococcal, haemophilus influenza b ["HIB"], and/or diphtheria-tetanus-acellular pertussis ["DTaP"] vaccinations on May 17, 2013,
Summary: DECISION AWARDING DAMAGES 1 DENISE K. VOWELL , Chief Special Master . On October 31, 2014, Miranda Werner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, et seq, 2 [the "Vaccine Act" or "Program"] on behalf of her minor child, P.M.S. The petition alleges that as a result of a rotavirus, polio, pneumococcal, haemophilus influenza b ["HIB"], and/or diphtheria-tetanus-acellular pertussis ["DTaP"] vaccinations on May 17, 2013, P..
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DECISION AWARDING DAMAGES1
DENISE K. VOWELL, Chief Special Master.
On October 31, 2014, Miranda Werner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq,2 [the "Vaccine Act" or "Program"] on behalf of her minor child, P.M.S. The petition alleges that as a result of a rotavirus, polio, pneumococcal, haemophilus influenza b ["HIB"], and/or diphtheria-tetanus-acellular pertussis ["DTaP"] vaccinations on May 17, 2013, P.M.S. suffered an intussusception and recurrence thereof. Petition at 1-2. The case was assigned to the Special Processing Unit of the Office of Special Masters.
On January 28, 2015, I issued a ruling on entitlement, finding petitioner entitled to compensation for P.M.S.'s intussusception. On August 10, 2015, respondent filed a proffer on award of compensation ["Proffer"] indicating that petitioner should be awarded compensation as detailed below.
Pursuant to the terms stated in the attached Proffer, I award compensation as follows:
(1) An amount sufficient to purchase an annuity contract for the benefit of P.M.S., paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"),3 pursuant to which the Life Insurance Company will agree to make payments to P.M.S. as follows:
a. A certain lump sum of $14,526.50 payable on January 15, 2031;
b. A certain lump sum of $14,526.50 payable on January 15, 2032;
c. A certain lump sum of $14,526.50 payable on January 15, 2033; and
d. A certain lump sum of $14,526.50 payable on January 15, 2034.
Should P.M.S. predecease the exhaustion of the payments referenced above or be declared incompetent by a court with proper jurisdiction, any remaining payments shall be made to the Estate of P.M.S.; and
(2) A lump sum of $10,221.19, which amount represents reimbursement of a State of Kentucky Medicaid lien, in the form of a check payable jointly to petitioner and
Xerox Recovery Services
Case ID: 19059948
P.O. Box 4003
Schaumburg, IL 60168-4003.
Petitioner shall endorse this payment to Xerox Recovery Services, on behalf of the State.
Proffer at 1-2. This amount represents compensation for all damages that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this decision.4
RESPONDENT'S PROFFER ON AWARD OF COMPENSATION
On January 26, 2015, respondent filed her Rule 4(c) Report, in which she recommended that the Court find petitioner entitled to compensation. On January 28, 2015, the Court ruled in favor of entitlement. The parties recommend that the compensation provided to P.M.S. should be made through future annuity payments as described below, and the parties request that the Chief Special Master's decision and the Court's judgment award the following for all compensation available under 42 U.S.C. § 300aa-15(a):
(1) An amount sufficient to purchase an annuity contract for the benefit of P.M.S., paid to the life insurance company from which the annuity will be purchased (the "Life Insurance Company"),1 pursuant to which the Life Insurance Company will agree to make payments to P.M.S. as follows:
a. A certain lump sum of $14,526.50 payable on January 15, 2031;
b. A certain lump sum of $14,526.50 payable on January 15, 2032;
c. A certain lump sum of $14,526.50 payable on January 15, 2033; and
d. A certain lump sum of $14,526.50 payable on January 15, 2034.
Should P.M.S. predecease the exhaustion of the payments referenced above or be declared incompetent by a court with proper jurisdiction, any remaining payments shall be made to the Estate of P.M.S.; and
(2) A lump sum of $10,221.19, which amount represents reimbursement of a State of Kentucky Medicaid lien, in the form of a check payable jointly to petitioner and
Xerox Recovery Services
Case ID: 19059948
P.O. Box 4003
Schaumburg, IL 60168-4003.
Petitioner shall endorse this payment to Xerox Recovery Services, on behalf of the State.
* * *
This proffer does not address final attorneys' fees and litigation costs. Petitioner is additionally entitled to reasonable attorneys' fees and litigation costs, to be determined at a later date upon petitioner submitting substantiating documentation.
Petitioner advised respondent that she agrees with the proffered award as described above.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Assistant Director
Torts Branch, Civil Division
s/RYAN D. PYLES
RYAN D. PYLES
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-9847
Dated: August 10, 2015
