Judges: Laura D Millman
Filed: Nov. 01, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-551V Filed: October 7, 2016 Not for Publication ************************************* CONSTANCE M. AGNEW, * Parent of R.P.A., a Minor, * * Damages decision based on proffer; Petitioner, * Flu Mist vaccine; acute hepatitis; * liver failure v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Renee J. Gentry, Washington, DC, for petitioner. Alexis B. Babcock, Washingt
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-551V Filed: October 7, 2016 Not for Publication ************************************* CONSTANCE M. AGNEW, * Parent of R.P.A., a Minor, * * Damages decision based on proffer; Petitioner, * Flu Mist vaccine; acute hepatitis; * liver failure v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* Renee J. Gentry, Washington, DC, for petitioner. Alexis B. Babcock, Washingto..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-551V
Filed: October 7, 2016
Not for Publication
*************************************
CONSTANCE M. AGNEW, *
Parent of R.P.A., a Minor, *
* Damages decision based on proffer;
Petitioner, * Flu Mist vaccine; acute hepatitis;
* liver failure
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Renee J. Gentry, Washington, DC, for petitioner.
Alexis B. Babcock, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING DAMAGES 1
On August 30, 2012, petitioners Patrick J. Agnew and Constance M. Agnew 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 his receipt of the Flu
Mist vaccination on September 28, 2009. Petitioners further alleged that because of his acute
hepatitis, T.P.A. suffered liver failure and underwent a liver transplantation on October 26, 2009.
The undersigned held an entitlement hearing on October 20, 2015. On March 30, 2016, the
undersigned issued a Ruling on Entitlement finding for petitioners. On September 22, 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Because this unpublished decision contains a reasoned explanation for the special master’s action in this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.
petitioners filed an unopposed motion to change the case caption to make Constance M. Agnew
the sole petitioner in this case. The undersigned granted petitioners’ motion on September 26,
2016.
On October 7, 2016, respondent filed Respondent’s Proffer on Damages. The
undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole, the
undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to the
terms stated in 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 petitioner as the guardian/conservator 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 Constance M. Agnew, petitioner.
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: October 7, 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
CONSTANCE M. AGNEW, )
Parent 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). Petitioner agrees.
B. Past Unreimbursed Expenses
Petitioner has submitted documentation for $43,752.63 in unreimbursed expenses in this
case, to which respondent has no objection. Thus respondent proffers that petitioner should be
awarded $43,752.63 for past unreimbursed expenses. Petitioner agrees.
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Should R.P.A. 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. Petitioner agrees.
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 petitioner should be
awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-
15(a)(3)(A). Petitioner agrees.
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 petitioner as guardian/conservator of R.P.A., for the benefit of R.P.A. No payments shall be
made until petitioner provides respondent with documentation establishing that she has been
appointed as the guardian/conservator of R.P.A.’s estate;
B. A lump sum payment of $43,752.63 representing compensation for past
unreimbursable expenses, payable to Constance Agnew, petitioner.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
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CATHARINE E. REEVES
Acting Deputy Director
Tort Branch, Civil Division
HEATHER L. PEARLMAN
Assistant Director
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: October 7, 2016 Telephone: (202) 616-7678
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