Monnens v. Secretary of Health and Human Services ( 2020 )

Case 1:19-vv-01220-UNJ Document 27 Filed 07/15/20 Page 1 of 3
Corrected
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1220V
UNPUBLISHED
JOSHUA MONNENS Chief Special Master Corcoran
and
ELISABETH MONNENS Filed: July 15, 2020
on behalf of R.M., a minor child,
Special Processing Unit (SPU);
Petitioner, Damages Decision Based on Proffer;
v. Rotavirus Vaccine; Intussusception
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Glynn Weldon Gilcrease, Jr., Law Office of Glynn W. Gilcrease, Jr., PC, Tempe, AZ, for
petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
A Decision Awarding Damages was previously issued in this case on February 7,
2020. ECF 22. On June 4, 2020, the parties filed a Joint Motion for Relief from
Judgment. ECF 25. In the motion, the parties “jointly petition the Court for an order
altering the Judgment . . . to modify the form of the award.” Id. I granted this motion and
vacated the prior decision awarding damages in an order dated July 15, 2020. ECF 26.
In the Joint Motion, Petitioners reported that they had encountered difficulties
establishing a guardianship for R.M., and “have determined, that they prefer, as an
alternative, for respondent to purchase an annuity for the benefit of R.M., payable to
R.M. at the time R.M. reaches the age of majority, which would not require
establishment of a guardianship.” Id. Therefore, as noted above and as requested by
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Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
Case 1:19-vv-01220-UNJ Document 27 Filed 07/15/20 Page 2 of 3
the parties, the prior decision issued on February 7, 2020 is vacated and withdrawn.
This new decision reflects the updated terms agreed upon by the parties in ECF 25.
On August 16, 2019, Joshua and Elisabeth Monnens 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 child, R.M. ECF 1.
Petitioners allege that R.M. suffered from an intussusception as a result of receiving a
rotavirus vaccination on June 11, 2018. Id. at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On November 21, 2019, a ruling on entitlement was issued, finding Petitioners
entitled to compensation for R.M.’s intussusception. ECF14. On February 6, 2020,
Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioners
should be awarded $50,000.00 as guardians/conservators of R.M.’s estate and
$1,029.27, representing compensation for their past unreimbursable expenses. ECF 21.
In the Proffer, Respondent represented that Petitioners agree with the proffered award.
Id.
However, as noted above, Petitioners have encountered difficulties establishing a
guardianship for R.M. ECF 25. Therefore, as requested in the Joint Motion, I award
Petitioners the total amount of $51,029.27 as follows:
A. An annuity contract purchased in the amount of $50,000.00 paid to the Life
Insurance Company as described in the attached Motion, 3 with the payment
payable to R.M. when he reaches the age of majority on February 9, 2036.
This amount represents compensation for all elements of compensation
under 42 U.S.C. § 300aa-15(a) to which R.M. is entitled; and
B. A lump sum payment of $1,029.27, in the form of a check made payable
directly to petitioners, representing compensation for petitioners’
unreimbursed past expenses pursuant to 42 U.S.C. § 300aa-15(a)(1)(B).
These amounts represent compensation for all damages that would be available
under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 4
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).
3
See ECF 25 at 2-4 (attached) for a detailed description of the requirements for the annuity contract.
4
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
Case 1:19-vv-01220-UNJ Document 27 Filed 07/15/20 Page 3 of 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
__________________________________________
)
JOSHUA MONNENS and ELISABETH )
MONNENS, on behalf of R.M., a minor child, )
)
Petitioners, )
) No. 19-1220V (ECF)
v. ) Chief Special Master Corcoran
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__________________________________________)
JOINT MOTION FOR RELIEF FROM JUDGMENT
Pursuant to the Rules of the United States Court of Federal Claims (“RCFC”), Appendix
B, Vaccine Rule 36, and RCFC Rule 60(b), the parties hereby jointly petition the Court for an
order altering the Judgment in the above-captioned case to modify the form of the award. The
Judgment dated March 12, 2020 (ECF Doc. No. 24), directs the Secretary of Health and Human
Services (“respondent”) to pay compensation to petitioners in the form of the following:
A. A lump sum of $50,000.00 in the form of a check payable to petitioners, as
guardians/conservators of R.M.’s estate; and,
B. A lump sum payment of $1,029.27, in the form of a check made payable directly to
petitioners, representing compensation for petitioners’ unreimbursed past expenses.
Petitioners represent that they have encountered difficulties establishing a guardianship for R.M.,
and have determined that they prefer, as an alternative, for respondent to purchase an annuity for
the benefit of R.M., payable to R.M. at the time R.M. reaches the age of majority, which would
not require the establishment of a guardianship. Respondent has no objection.
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The parties therefore ask the Court to enter an order relieving the parties of the Court’s
March 12, 2020 Judgment, and vacating and modifying the Judgment to direct respondent to pay
compensation in this case as follows:
A. An annuity contract purchased in the amount of $50,000.00 paid to the Life
Insurance Company as described below, with the payment payable to R.M. when
he reaches the age of majority on February 9, 2036. This amount represents
compensation for all elements of compensation under 42 U.S.C. § 300aa-15(a) to
which R.M. is entitled.
1. 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.
2. The purchase price of the annuity shall be $50,000.00 paid to the Life Insurance
Company, and will be used to fund an annuity payment of $71,726.75 on February 9,
2036, paid to R.M. In the event that the cost of the annuity payment varies from
$50,000.00, the annuity payment to be paid on February 9, 2036, shall be adjusted
upward or downward to ensure the total Annuity Premium of the annuity contract
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shall remain fixed at exactly $50,000.00. Should R.M. predecease the certain
payment period specified above, any remaining payment shall be made to his
estate. However, written notice to the Secretary of Health and Human Services and
the Life Insurance Company shall be provided within twenty (20) days of R.M.’s
death.
3. The annuity contract shall be owned solely and exclusively by the Secretary of
Health and Human Services and will be purchased as soon as practicable following
the entry of this judgment. The parties agree that the Secretary of Health and Human
Services and the United States of America are not responsible for the payment of any
sums other than the amount set forth herein and that they do not guarantee or insure
the future annuity payment. Upon the purchase of the annuity contract, the Secretary
of Health and Human Services and the United States of America are released from
any and all obligations with respect to the future annuity payments.
4. The obligation of the annuity company to make each annuity payment shall be
discharged upon the mailing of a valid check in the amount of such payment to the
address designated by the party to whom the payment is required to be made.
Payments lost or delayed through no fault of the annuity company shall be promptly
replaced by the annuity company, but the annuity company is not liable for interest
during the interim.
5. The parties stipulate and agree that the annuity payments cannot be assigned,
accelerated, deferred, increased, or decreased by the parties, that no part of any
annuity payments called for herein, nor any assets of the United States or the annuity
company, are subject to execution or any legal process for any obligation in any
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manner, and that petitioners shall not have the power or right to sell, assign,
mortgage, encumber, or anticipate said annuity payments, or any part thereof, by
assignment or otherwise.
B. A lump sum payment of $1,029.27, in the form of a check made payable directly to
petitioners, representing compensation for petitioners’ unreimbursed past expenses
pursuant to 42 U.S.C. § 300aa-15(a)(1)(B).
Respectfully submitted,
s/Glynn W. Gilcrease, Jr. s/ Voris E. Johnson, Jr.
Law Office of Glynn W. Gilcrease, Jr. P.C. VORIS E. JOHNSON, JR.
4500 South Lakeshore Drive Senior Trial Attorney
Suite 368 Torts Branch, Civil Division
Tempe, AZ 85282 U.S. Department of Justice
(480) 897-0990 P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4136
Email: voris.johnson@usdoj.gov
Dated: June 4, 2020
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