Judges: Nora Beth Dorsey
Filed: Jul. 22, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-0566V Filed: June 9, 2016 Unpublished **************************** RAFAEL CORREA and ZAPHIRA * BRITO, on behalf of A.C., a minor, * * Petitioner, * Damages Decision Based on Proffer; v. * Rotavirus Vaccine; Intussusception; * Surgical Intervention; Special SECRETARY OF HEALTH * Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * **************************** John Howie, Jr., Howie Law, P.C., Dallas, TX, for
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-0566V Filed: June 9, 2016 Unpublished **************************** RAFAEL CORREA and ZAPHIRA * BRITO, on behalf of A.C., a minor, * * Petitioner, * Damages Decision Based on Proffer; v. * Rotavirus Vaccine; Intussusception; * Surgical Intervention; Special SECRETARY OF HEALTH * Processing Unit (“SPU”) AND HUMAN SERVICES, * * Respondent. * * **************************** John Howie, Jr., Howie Law, P.C., Dallas, TX, for p..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-0566V
Filed: June 9, 2016
Unpublished
****************************
RAFAEL CORREA and ZAPHIRA *
BRITO, on behalf of A.C., a minor, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Rotavirus Vaccine; Intussusception;
* Surgical Intervention; Special
SECRETARY OF HEALTH * Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
John Howie, Jr., Howie Law, P.C., Dallas, TX, for petitioner.
Adriana Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On June 3, 2015, petitioners filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”), on behalf of their minor daughter A.C. The petition alleged that A.C. suffered
intussusception due to the rotavirus vaccine she received on July 3, 2012. The case
was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
On November 4, 2015, the undersigned issued a ruling on entitlement finding
petitioners entitled to compensation. (ECF No. 18). On June 8, 2016, respondent filed
a proffer on award of compensation (“Proffer”) indicating that compensation should be
awarded for A.C.’s actual pain and suffering and to satisfy a New York City Medicaid
lien. (ECF No. 34) According to the Proffer, the aforementioned compensation should
be made through a combination of a lump sum and future annuity payments. Id. No
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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).
award should be made for future pain and suffering, past and future unreimbursable
expenses, and lost future earnings.
Id. Respondent represents that petitioners agree
with the proffered award.
Id.
Based on the record as a whole, the undersigned finds that petitioners are
entitled to the award as stated in the attached Proffer. Thus, pursuant to the terms of
said Proffer, the undersigned awards petitioners the following:
(A) A lump sum payment of $9,189.36, representing compensation for
satisfaction of a New York City Medicaid lien, in the form of a check
payable jointly to petitioners and
Department of Social Services
New York City
Human Resources Administration
Division of Liens and Recovery
P.O. Box 414799
Boston, MA 02241-4799
Case No: 717572
Petitioners agrees to endorse this payment to New York City.
(B) An amount sufficient to purchase an annuity contract, described in the
Proffer Section II.B., that will provide payments to A.C. as set forth
below:
1. Beginning February 28, 2030, $26,910.87 payable annually for four
(4) years certain only.
This amount represents all elements of compensation to which A.C.
would be entitled under 42 U.S.C. § 300aa-15(a). Petitioners agree.
Should A.C. predecease any of the certain payments set forth above,
said payments shall be made to her estate. Id.
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
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.
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
RAFAEL CORREA and ZAPHIRA BRITO,
on behalf of A.C., a minor,
Petitioners,
No. 15-566V
v. Chief Special Master Dorsey
ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Future Unreimbursable Expenses
The parties agree that based upon the evidence of record, A.C. will not require future medical
or rehabilitative care for her vaccine-related injury. Therefore, respondent proffers that petitioners
should not be awarded future unreimbursable expenses on A.C.’s behalf under 42 U.S.C. § 300aa-
15(a)(1)(A). Petitioners agree.
B. Lost Future Earnings
The parties agree that based upon the evidence of record, A.C. will not suffer a loss of
earnings capacity as a result of her vaccine-related injury. Therefore, respondent proffers that
petitioners should not be awarded anticipated loss of earnings on A.C.’s behalf under 42 U.S.C.
§ 300aa-15(a)(3)(B). Petitioners agree.
1
C. Pain and Suffering
The parties agree that it is unlikely that A.C.’s vaccine-related injury will cause her pain and
suffering in the future. Respondent proffers that A.C. should be awarded compensation for actual
pain and suffering for her vaccine-related injury under 42 U.S.C. § 300aa-15(a)(4). Such
compensation shall be in the form of an annuity as set forth in section II.B below. Petitioners agree.
D. Past Unreimbursable Expenses
The parties agree that based upon the evidence of record, A.C. did not incur any past
unreimbursable expenses as a result of her vaccine-related injury. Therefore, respondent proffers that
petitioners should not be awarded past unreimbursable expenses on A.C.’s behalf under 42 U.S.C. §
300aa-15(a)(1)(B). Petitioners agree.
E. Medicaid Lien
Respondent proffers that A.C. should be awarded $9,189.36, which represents full
satisfaction of any right of subrogation, assignment, claim, lien, or cause of action New York
City may have against any individual as a result of any Medicaid payments that New York City
has made to or on behalf of A.C. from the date of her eligibility for benefits through the date of
judgment in this case as a result of her vaccine-related injury suffered on or about July 3, 2012,
under Title XIX of the Social Security Act. Such compensation shall be in the form of a lump
sum payment as forth in section II.A below. Petitioners agree.
II. Form of the Award
Based upon the evidence of record, respondent proffers, and the parties recommend, that
compensation be made through a combination of 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:
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A. A lump sum payment of $9,189.36, which amount represents reimbursement of a
New York City Medicaid lien, in the form of a check payable jointly to petitioners and
DEPARTMENT OF SOCIAL SERVICES
New York City
Human Resources Administration
Division of Liens and Recovery
P.O. Box 414799
Boston, MA 02241-4799
Case No: 717572.
Petitioners agree to endorse this payment to New York City.
B. An amount sufficient to purchase an annuity contract, 1 paid to the life insurance
company2 from which the annuity will be purchased, 3 subject to the conditions described below,
that will provide payments to A.C. as set forth below:
1. Beginning February 28, 2030, $26,910.87 payable annually for four (4) years
certain only.
This amount represents all elements of compensation to which A.C. would be entitled under 42
U.S.C. § 300aa-15(a). Petitioners agree. 4 Should A.C. predecease any of the certain payments
1
In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance
companies.
2
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.
3
Petitioners authorize the disclosure of certain documents filed by the petitioners 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.
4
At the time payment is received, A.C. will be an adult, and thus guardianship is not required.
3
set forth above, said payments shall be made to her 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 A.C.’s death.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
GLENN MACLEOD
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Adriana Teitel
ADRIANA TEITEL
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, DC 20044-0146
Tel: (202) 616-3677
Dated: June 8. 2016
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