SCOTT v. SECRETARY OF HEALTH AND HUMAN SERVICES ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 22, 2023
*************************
ROBERT SCOTT and ANGELA M. * UNPUBLISHED
KECK as Co-Conservators of the Estate *
of Minor, A.K., *
*
Petitioners, * No. 18-915V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Decision Based on Stipulation; Diphtheria-
AND HUMAN SERVICES, * Tetanus-Acellular Pertussis (“DTaP”)
* Vaccine; Hepatitis B (“Hep B”) Vaccine;
* Inactivated Polio Vaccine (“IPV”);
Respondent. * Haemophilus Influenzae Type B (“Hib”)
* Vaccine; Pneumococcal conjugate Vaccine;
* Transverse Myelitis (“TM”).
*************************
LeLand F. Dempsey, Dempsey & Kingsland, P.C., Kansas City, MO, for Petitioners.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION BASED ON STIPULATION1
On June 26, 2018, Jessica Cook and Brandon Keck, as legal representatives of A.K., filed
a petition in the National Vaccine Injury Program2 alleging that as a result of a diphtheria-
tetanus-acellular pertussis (“DTaP”), hepatitis B (“Hep B”), inactivated polio (“IPV”),
1
Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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), Petitioners have 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.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2018) (“Vaccine Act” or “the Act”). All citations in this Decision
to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
haemophilus influenzae type b (“Hib”), and Pneumococcal conjugate vaccines administered on
September 15, 2015, A.K. developed transverse myelitis (“TM”). Petition at Preamble (ECF No.
1). On August 15, 2023, Robert Scott and Angela Keck, as co-conservators of the estate of
minor A.K. (“Petitioner”), were substituted as the current Petitioners along with a second
amended petition.3 Second Amended Petition (ECF No. 118).
On November 21, 2023, the parties filed a stipulation recommending an award of
compensation to Petitioner. Stipulation (ECF No. 121). Respondent denies that the Tdap, Hep
B, IPV, Hib, and/or Pneumococcal conjugate vaccines caused A.K.’s TM, or any other injury,
and denies that A.K.’s current condition is a sequalae of a vaccine-related injury. Nevertheless,
the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds
the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the
terms set forth therein.
The parties stipulate that Petitioners shall receive the following compensation:
a. A lump sum of $1,047,256.50, which amount represents compensation for first
year life care expenses ($38,371.92) and trust seed funds ($1,008,884.58), in the
form of a check payable to Regions Bank, as trustee of the grantor reversionary
trust established for the benefit of A.K.;
b. A lump sum of $250,000.00, which amount represents compensation for partial
lost future earnings, in the form of a check payable to Petitioners as co-
conservators of the estate of A.K. for the benefit of A.K.;
c. A lump sum of $78,563.29, which amount represents compensation for past
unreimbursable expenses, in the form of a check payable to Petitioners, Robert
Scott Keck and Angela M. Keck;
d. A lump sum of $33,003.23, representing reimbursement of a State of Missouri
Medicaid lien for services rendered on behalf of A.K., in the form of a check
payable jointly to Petitioners and
Optum Subrogation Services
L-3994
Columbus, OH 43260-3994
Optum File #: SN23385893
Attn: Karen Challeen
Petitioners agree to endorse this check to Optum Subrogation Services.
3
A first amended petition was filed on May 5, 2023 by the original Petitioners. First Amended
Petition (ECF No. 95). No substantive claims were added in either the first or second amended
petitions.
2
e. An amount sufficient to purchase the annuity contract described in paragraph
10 of the stipulation, paid to the life insurance company from which the annuity
will be purchased (the “Life Insurance Company”); and
f. An amount of $250,000.00 to purchase the annuity contract described in
paragraph 11 of the stipulation, paid to the life insurance company from which
the annuity will be purchased (the “Life Insurance Company”).
Stipulation at ¶ 8. This amount represents compensation for all damages that would be
available under 42 U.S.C. § 300aa-15(a).
The undersigned approves the requested amount for Petitioners’ compensation.
Accordingly, an award should be made consistent with the stipulation.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.4
IT IS SO ORDERED.
s/Nora B. Dorsey
Nora B. Dorsey
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
3
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
ROBERT SCOTT and ANGELA M. )
KECK as Co-Conservators of the Estate )
of Minor, A.K., )
)
Petitioners, ) No. 18-915V
v. ) Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
STIPULATION
The parties hereby stipulate to the following matters:
1. On behalf of their granddaughter, A.K., petitioners filed a second amended
petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10 to 34 (the “Vaccine Program”).1 The petition seeks compensation for injuries
allegedly related to A.K.’s receipt of the Diphtheria, Tetanus, acellular Pertussis (“DTaP”);
Hepatitis B (“Hep. B”); inactivated Poliovirus (IPV); Haemophilus Influenzae type B (“HIB”);
and pneumococcal conjugate vaccines, which vaccines are contained in the Vaccine Injury Table
(the “Table”), 42 C.F.R. § 100.3 (a).
2. A.K. received the subject immunizations on September 15, 2015.
3. These vaccines were administered within the United States.
4. Petitioners allege that the subject vaccines caused A.K. to develop transverse
myelitis (“TM”), and that A.K. experienced residual effects of this injury for more than six
months.
1
The original Petition was filed on June 26, 2018, and an Amended Petition was filed on May 5, 2023, by former
petitioners, Jessica Cook and Brandon Keck. On August 15, 2023, Robert Scott and Angela Keck were substituted
as current petitioners, and a second Amended Petition listing them as petitioners was filed on that same day. No
substantive claims were added in either the first or second Amended Petitions.
1