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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1220V
UNPUBLISHED
JOSHUA MONNENS and ELISABETH Chief Special Master Corcoran
MONNENS on behalf of R.M., a minor
child, Filed: February 7, 2020
Petitioner, Special Processing Unit (SPU);
v. Damages Decision Based on Proffer;
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 DAMAGES1
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. Petitioners
allege that R.M. suffered from an intussusception as a result of receiving a rotavirus
vaccination on June 11, 2018. Petition 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. On February 6, 2020, Respondent
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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).
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. Proffer at 1-2. In
the Proffer, Respondent represented that Petitioners agree with the proffered award. Id.
Based on the record as a whole, I find that Petitioners are entitled to an award as stated
in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioners the
total amount of $51,029.27 as follows:
A. A lump sum payment 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 payable
directly to Petitioners, representing compensation for their actual
unreimbursable expenses.
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.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.
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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. )
__________________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On November 20, 2019, respondent filed his Rule 4(c) Report, in which he recommended
that the Court find petitioners Joshua and Elisabeth Monnens, on behalf of their minor son, R.M.,
entitled to compensation in this case alleging the Table injury intussusception following a
rotavirus vaccination. On November 21, 2019, the Court entered its Ruling on Entitlement,
finding petitioners entitled to compensation. Respondent now proffers that petitioners receive an
award consisting 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. This amount represents compensation for all
elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioners, as
guardians/conservators of R.M.’s estate, are entitled. 1
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Should R.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 pain and suffering, and future lost wages.
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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).
Petitioners agree with the proffered award described in paragraphs A and B, above. 2
Petitioners further agree that the payment described in paragraph A, above, shall not be
made until petitioners provide the Secretary with documentation establishing their appointment
as guardians/conservators of the estate of R.M. under the laws of the State of North Carolina. If
petitioners are not authorized by a court of competent jurisdiction to serve as the
guardians/conservators of the estate of R.M. at the time a payment pursuant to the Court’s
judgment is to be made, any such payment shall be paid to the party or parties appointed by a
court of competent jurisdiction to serve as guardian(s)/conservator(s) of the estate of R.M. upon
submission of written documentation of such appointment to the Secretary.
Respectfully submitted,
JOSPEH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
2
This proffer does not include any award for attorneys’ fees and costs that may be awarded
pursuant to 42 U.S.C. § 300aa-15(e).
2
/s/ Voris E. Johnson, Jr.
VORIS E. JOHNSON, JR.
Senior Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel.: (202) 616-4136
Email: voris.johnson@usdoj.gov
Dated: February 6, 2020
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