Mendoza v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1475V
UNPUBLISHED
MICHAEL MENDOZA, Guardian ad Chief Special Master Corcoran
Litem of C.M., a minor,
Filed: November 10, 2021
Petitioner,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Guillain-
HUMAN SERVICES, Barre Syndrome (GBS)
Respondent.
Alan Kenneth Nicolette, Nordstrom, Steele, et al., Tustin, CA, for Petitioner.
Matthew Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On October 26, 2020, Michael Mendoza 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 C.M. Petitioner alleges that C.M. suffered Guillain-Barré
Syndrome (“GBS”) which meets the Table definition for GBS after receiving the influenza
vaccine on September 6, 2019. Petition at 1, ¶¶ 2, 40. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On April 2, 2021, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for C.M.’s GBS. On November 10, 2021, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded compensation
in the amount of $6,231.59 for past unreimburseable expenses and an amount not to
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2
National 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).
exceed $150,000.00 to purchase an annuity contract as described in II.B. for pain and
suffering. Proffer at 2-3. In the Proffer, Respondent represented that Petitioner agrees
with the proffered award. Id. 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. A lump sum in the amount of $6,231.59, representing compensation for
actual unreimbursable expenses, in the form of a check payable to
Petitioner; and
B. A lump sum of $150,000.00 to purchase the annuity contract described
in Section II.B of the Proffer, representing compensation for pain and
suffering.
These amounts represent compensation for all damages that would be available under
Section 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
__________________________________________
)
MICHEAL MENDOZA, Guardian ad )
Litem of C.M., a minor, )
)
Petitioner, ) No. 20-1475V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
RESPONDENT’S PROFFER OF DAMAGES
I. Procedural History
On October 26, 2020, Michael Mendoza, guardian ad litem of C.M, a minor,
(“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act
of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), alleging that C.M. suffered
Guillain-Barre Syndrome (“GBS”) as a result of an influenza (“flu”) vaccination administered to
him on September 6, 2019. Petition at 1. On March 29, 2021, the Secretary of Health and
Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is appropriate
for compensation under the terms of the Act, and on April 2, 2021, the Chief Special Master
issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 25; ECF
No. 26.
II. Items of Compensation and Form of the Award
1
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 petitioner documents his expenditure of past unreimbursable
expenses related to C.M.'s vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $6,231.59, in the form of a check
payable to petitioner. Petitioner agrees.
B. Pain and Suffering
For pain and suffering, an amount not to exceed $150,000.00 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 C.M. as set forth below:
1
Should C.M. 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
At 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. Beginning June 11, 2023, $25,000.00 per year for four (4) years certain.
2. A certain lump sum of $12,751.65 payable on June 11, 2026.
3. A certain lump sum of $14,187.17 payable on June 11, 2030.
4. A certain lump sum of $14,945.35 payable on June 11, 2032.
5. A certain lump sum of $16,182.43 payable on June 11, 2035.
The purchase price of the annuity described in this section II.B shall neither be greater
nor less than $150,000.00. In the event that the cost of the certain annuity payments set forth
above varies from $150,000.00, the lump sum payment due on June 11, 2035, listed above, shall
be adjusted to ensure that the total cost of the annuity is neither less than nor greater than
$150,000.00. Should C.M. predecease any of the certain annuity payments set forth above, said
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 C.M.’s
death.
These amounts represent all elements of compensation to which C.M. 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: $6,231.59
B. A lump sum of $150,000.00 to purchase the annuity contract described
above in section II. B.
5
At the time payment is received, C.M. will be an adult, and thus guardianship is not
required.
3
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/Emilie F. Williams
EMILIE F. WILLIAMS
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Direct Dial: (202) 305-0124
DATED: November 10, 2021
4