Judges: Nora Beth Dorsey
Filed: Nov. 08, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1846V Filed: August 13, 2019 UNPUBLISHED DOLORES DE ALATORRE PEREZ, as Mother and Natural Guardian of Minor, D.A., and ANTONINO ALATORRE GUTIERREZ, as Father and Natural Special Processing Unit (SPU); Guardian of Minor, D.A. Damages Decision Based on Proffer; Petitioner, Tetanus Diphtheria acellular v. Pertussis (Tdap) Vaccine; Meningococcal Vaccine; Vasovagal SECRETARY OF HEALTH AND Syncope HUMAN SERVICES, Respondent.
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1846V Filed: August 13, 2019 UNPUBLISHED DOLORES DE ALATORRE PEREZ, as Mother and Natural Guardian of Minor, D.A., and ANTONINO ALATORRE GUTIERREZ, as Father and Natural Special Processing Unit (SPU); Guardian of Minor, D.A. Damages Decision Based on Proffer; Petitioner, Tetanus Diphtheria acellular v. Pertussis (Tdap) Vaccine; Meningococcal Vaccine; Vasovagal SECRETARY OF HEALTH AND Syncope HUMAN SERVICES, Respondent. ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1846V
Filed: August 13, 2019
UNPUBLISHED
DOLORES DE ALATORRE PEREZ, as
Mother and Natural Guardian of Minor,
D.A., and ANTONINO ALATORRE
GUTIERREZ, as Father and Natural Special Processing Unit (SPU);
Guardian of Minor, D.A. Damages Decision Based on Proffer;
Petitioner, Tetanus Diphtheria acellular
v. Pertussis (Tdap) Vaccine;
Meningococcal Vaccine; Vasovagal
SECRETARY OF HEALTH AND Syncope
HUMAN SERVICES,
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, Wellesley Hills, MA, for
petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On December 3, 2018, Dolores De Alatorre Perez (as mother and natural
guardian of minor D.A.) and Antonino Alatorre Guitierrez (as father and natural guardian
of minor D.A.) (“petitioner’s”), filed a petition on behalf of D.A., a minor, for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., 2 (the “Vaccine Act”). Petitioners allege that D.A. suffered a
syncopal episode upon receiving Tetanus Diphtheria acellular Pertussis (“Tdap”) and
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
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, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is 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).
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).
Meningococcal vaccines on June 22, 2017. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
On July 8, 2019, a ruling on entitlement was issued, finding petitioners entitled to
compensation for vasovagal syncope episode. On August 9, 2019, respondent filed a
proffer on award of compensation (“Proffer”) indicating petitioners should be awarded
$675.00 for past unreimbursable expenses and an amount sufficient to purchase an
annuity described in the Proffer at Section II.B. Proffer at 2. In the Proffer, respondent
represented that petitioners agree with the proffered award. Based on the record as a
whole, the undersigned finds that petitioner is entitled to an award as stated in the
Proffer. Id.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner:
• A lump sum of $675.00 representing past unreimbursable expenses
in the form of a check payable to petitioners, Dolores De Alatorre
Perez (as mother and natural guardian of minor D.A.) and Antonino
Alatorre Guitierrez (as father and natural guardian of minor D.A.); and
• An amount sufficient to purchase the annuity contract described in
the Proffer at Section II.B.
This amount represents all elements of compensation to which D.A. would be entitled
under § 15(a).
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.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
DOLORES DE ALATORRE PEREZ, as )
mother and natural guardian of minor, D.A.,
)
and ANTONINO ALATORRE )
GUTIERREZ, as father and natural guardian )
of minor, D.A., )
)
Petitioners, ) No. 18-1846V
v. ) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER OF DAMAGES
I. Procedural History
On December 3, 2018, petitioners filed a petition for compensation (“petition”) under the
National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34, as amended.
Petitioners allege that, as a result of receiving the Tetanus Diphtheria acellular Pertussis (“Tdap”)
and Meningococcal vaccines on June 22, 2017, D.A. suffered a syncopal episode. Petition at 1.
On July 5, 2019, respondent filed his Vaccine Rule 4(c) report, conceding that D.A.’s alleged
injury meets the revised Table criteria for vasovagal syncope episode after a Tdap and
Meningococcal vaccination. On July 8, 2019, the Chief Special Master issued a ruling on
entitlement, finding that petitioner was entitled to compensation for D.A., in that she met the
revised Table criteria for vasovagal syncope episode after receiving a Tdap and Meningococcal
vaccination.
1
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
A. Past Unreimbursable Expenses
Evidence supplied by petitioners documents their expenditure of past unreimbursable
expenses related to D.A.'s vaccine-related injury. Respondent proffers that petitioners should be
awarded past unreimbursable expenses in the amount of $675.00. Petitioners agree.
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 D.A. as set forth below:
1
Should D.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.
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
1. $23,019.06 payable in a certain lump sum on October 20, 2023.
2. $24,487.74 payable in a certain lump sum on October 20, 2025.
3. $26,678.24 payable in a certain lump sum on October 20, 2027.
Should D.A. predecease any of the certain payments 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 D.A.’s death.
This amount represents all elements of compensation to which D.A. would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioners agree. 5
II. Summary of Recommended Payments Following Judgment
A. Past unreimbursable expenses: $675.00
B. An amount sufficient to purchase the annuity contract described
above in section I. 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
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
5
At the time payment is received, D.A. will be an adult, and thus guardianship is not required.
3
/s/Camille M. Collett
CAMILLE M. COLLETT
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Dated: August 9, 2019 Tel: (202) 616-4098
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