R.T. v. Secretary of Health and Human Services ( 2014 )

Sin the filim’teh $tate§ Court at feberal Claims
OFFICE OF SPECIAL MASTERS
No. 14-683V
Filed: October 23, 2014
Not For Publication
*************************
R.T., deceased, by her father,
THOMAS M. TAFOYA
Damages Decision Based on Proffer;
MMR; Varicella; Death
Petitioner,
SECRETARY OF HEALTH
AND HUMAN SERVICES,
3'- ’? >(- >(- 3(- =(- 3(- >(- >(- >I- 3(- al-
Respondent.
*************************
Michael G. McLaren, Black McLaren Jones Ryiand & Griffee, PC, for petitioner.,
Lindsay Corliss, US. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMA_GES1.
Vowell, Chief Special Master:
On July 31, 2014, Thomas Tafoya filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, etseq,2 [the
“Vaccine Act” or “Program”] on behalf of the estate of his minor daughter, RT. The
petition alleges that as a result of the administration of hepatitis A ["Hep-A”], measles-
mumps-rubella [“MMR"], Varicella, Haemophilus Influenzae Type b [“Hib”], and
pneumococcal conjugate [“Prevnar” or “PCV13”] vaccinations on July 10, 2013, RT.
suffered severe injuries and death. Petition at 1.
On September 12, 2014, | issued a ruling on entitlement, finding petitioner
entitled to compensation. On October 21, 2014, respondent filed a proffer on award of
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E—
Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). In accordance with
Vaccine Rule 18(b), petitioners have 14 days to identify and move to delete 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 delete 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 (2006).
compensation (“Proffer”) detailing compensation for R.T.'s actual pain and suffering,
past unreimbursable medical expenses, a Medicaid lien, and R.T.’s death. According to
respondent’s Proffer, petitioner agrees to the proposed award of compensation.
Pursuant to the terms stated in the attached Proffer, l award petitioner:
‘l. A lump sum payment of $500,000.00 in the form of a check payable to
petitioner, Thomas M. Tafoya, as guardian/conservator of R.T.’s estate,
representing compensation for R.T.’s death ($250,000.00) and for R.T.’s
actual pain and suffering ($250,000.00);
2. A lump sum payment of $500.00 in the form of a check payable to
petitioner, Thomas M. Tafoya, representing compensation for petitioner’s
past unreimbursable medical expenses; and
3. A lump sum payment of $600,394.22 in the form of a check payable
jointly to petitioner, Thomas M. Tafoya, and
Presbyterian Salud
P.O. Box 27489
Albuquerque, NM 87125-7489
Re: Member ID #105603228-00
Attn: Lynn Blackburn,
representing compensation for satisfaction of the State of New Mexico
Medicaid lien.3
These amounts represent compensation for all damages that would be available
under § 300aa-15(a).
The clerk of the court is directed to enterjudgment in accordance with this
decision.4
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3 Petitioner agrees to endorse this payment to Presbyterian Salud.
4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
R.T., deceased, by her father, )
THOMAS M. TAFOYA, )
_. )
Petitioner, ) No. 14-683V ECF
)
v,._. ) Chief Special Master Vowell
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
__ ._ _._ J
On July 31, 2014, Thomas M. Tafoya (“petitioner”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986, Q amended, 42 U.S.C. § 300aa—1 et
seq. (“Vaccine Act”), on behalf of his minor daughter, R.T., who is now deceased. He alleged
that, as a result of R.T.’s July 10, 2013, measles-mumps-rubella (“MMR”), hepatitis A, varicella,
Haemophilus Influenzae Type b (“Hib”), and pneumococcal conjugate (“Prevnar”) vaccinations,
she suffered serious injuries that ultimately caused her death. Petitioner alleged a theory based
on causation-in-fact. The Secretary of Health and Human Services (“respondent”) filed a
Vaccine Rule 4(c) Report, conceding that R.T.’s varicella and MMR vaccinations caused-in-fact
her injuries and resulted in her death. Respondent hereby submits the following proffer
regarding the award of compensation. This proffer does not address final attorneys’ fees and
litigation costs. Petitioner is additionally entitled to reasonable attorneys’ fees and litigation
costs, to be determined at a later date upon petitioner submitting substantiating documentation.
1. Items of Compensation
A. Future Medical Care Expenses
As this is a death case, petitioner is not entitled to an award for projected unreimbursable
medical care expenses incurred from the date of judgment as provided under the Vaccine Act,
42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.
B. Lost Future Earnings
Based upon the evidence of record, respondent proffers that petitioner is not entitled to an
award for lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(B).
Petitioner agrees.
C. Pain and Suffering
Respondent proffers that petitioner, as guardian/conservator of R.T.’s estate, should be
awarded $250,000.00 for R.T.’s actual pain and suffering as provided under the Vaccine Act,
42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
D. Past Unreimburseable Expenses
Evidence that petitioner supplied documents his expenditure of past unreimbursable
expenses related to R.T.’s vaccine-related injury. Respondent proffers that petitioner should be
awarded past unreimbursable expenses in the amount of $500.00. Petitioner agrees.
Respondent proffers that petitioner, as the guardian/conservator of R.T.’s estate, is
entitled to the $250,000.00 death benefit pursuant to 42 U:S.C. § 300aa-15(a)(2). Petitioner
agrees.
F- Meme—“@449
Respondent proffers that petitioner, as guardian/conservator of RT ’5 estate, should be
awarded funds to satisfy the State of New Mexico Medicaid lien in the amount of $600,394.22,
which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of
action the State of New Mexico may have against any individual as a result of any Medicaid
payments the State of New Mexico has made to or on behalf of RT. from the date of her
eligibility for benefits through the date of judgment in this case as a result of her vaccine-related
injury, under Title XIX of the Social Security Act. Petitioner agrees.
II. _Form of the Award __
The parties recommend that the compensation provided to petitioner should be made
through lump sum payments and request that the special master’s decision and the Court’s
judgment award the following:
A. A lump sum payment of $250,000.00, representing compensation for R.T.’s
death, pursuant to 42 U.S.C. § 300aa-15(a)(2), made payable to Thomas M. Tafoya, as the
guardian/conservator of R.T.’s estate;
B. A lump sum payment of $250,000.00, representing compensation for R.T.’s
actual pain and suffering, pursuant to 42 U.S.C. § 300aa—15(a)(4), payable to Thomas M. Tafoya,
as the guardian/conservator of R.T.’s estate;
C. A lump sum payment of $500.00, representing compensation for petitioner’s past
out of pocket expenses, pursuant to 42 U.S.C. § 300aa—15(a), payable to Thomas M. Tafoya; and
D. A lump sum payment of $600,394.22, representing compensation for satisfaction
of the State of New Mexico Medicaid lien, payable jointly to petitioner and
3::
Presbyterian Salud
PO. Box 27489
Albuquerque, NM 87125-7489
Re: Member ID #105603228-00
Attn: Lynn Blackburn
Petitioner agrees to endorse this payment to Presbyterian Salud.
Petitioner represents that he presently is, or within 90 days of the date of judgment will
become, duly authorized to serve as guardian/conservator of R.T.’s estate under the laws of the
State of New Mexico. No payments pursuant to this Proffer shall be made until petitioner
provides the Secretary with documentation establishing his appointment as guardian/conservator
of R.T.’s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as
guardian/conservator of R.T.’s estate at the time a payment pursuant to this Proffer is to be made,
any such payment shall be paid to the party or parties appointed by a court of competent
jurisdictionto serve as guardian(s)/conservator(s) of R.T.’s estate upon submission of written
documentation of such appointment to the Secretary.
III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioner Thomas M. Tafoya,
as guardian/conservator of R.T.’s estate: $ 500,000.00
B. Lump sum paid to petitioner Thomas M. Tafoya, as
compensation for past unreimbursable medical expenses: 33 500.00
C. Lump sum paid jointly to Thomas M. Tafoya and
Presbyterian Salud, for satisfaction of State of New Mexico
Medicaid lien:
TOTAL AWARD: $1,100,894.22
Respectfully submitted,
JOYCE R. BRANDA
Acting Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
VORIS E. JOHNSON, J‘R.
Assistant Director
Torts Branch, Civil Division
LINDSAY CORLISS
Trial Attorney
Torts Branch, Civil Division
U. S. Department of Justice
PO. Box 146, Benjamin Franklin Station
Washington, DC. 20044-0146
Direct dial: (202) 616-9197
Dated: October 21, 2014 Fax: (202) 616-4310