John v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0574V
Filed: February 5, 2018
UNPUBLISHED
LINCOLN JOHN and DASWATTIE
JOHN, as parents and natural Special Processing Unit (SPU);
guardians of K.J., a minor child, Damages Decision Based on Proffer;
Influenza (Flu) Vaccine; Guillain-
Petitioners, Barre Syndrome (GBS)
v.
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioners.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On May 12, 2016, Lincoln and Daswattie John (“petitioners”), as the parents and
natural guardians of their minor son, K.J., filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioners allege that K.J. suffered Guillain-Barré syndrome (“GBS”) as
a result of the following vaccines administered to him on May 12, 2014: influenza (“flu)
vaccine, varicella vaccine, and/or measles-mumps-rubella (“MMR”) vaccine; and/or as a
result of the following vaccines administered to him on June 12, 2014: hepatitis A (“Hep
A”) vaccine; diphtheria-tetanus-acellular pertussis (“Dtap”) vaccine, haemophilus
influenza type B (“HIB”) vaccine, and pneumococcal conjugate (“Prevnar”) vaccine.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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).
Petition at ¶¶1-23. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
On September 22, 2017, a ruling on entitlement was issued, finding petitioners
entitled to compensation. On February 5, 2018, respondent filed a proffer on award of
compensation (“Proffer”) indicating petitioners should be awarded $152,418.89. Proffer
at 2. In the Proffer, respondent represented that petitioners agree with the proffered
award. Based on the record as a whole, the undersigned finds that petitioners are
entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioners the following:
A. A lump sum payment of $115,000.00 representing compensation for K.J.’s
pain and suffering in the form of a check payable to petitioners as
guardians/conservators of the estate of K.J. for the benefit of K.J. No
payment shall be made until petitioners provide the Secretary with
documentation establishing their appointment as guardians/conservators of K.J.’s
estate. If petitioners are not authorized by a court of competent jurisdiction to
serve as guardians/conservators of the estate of K.J. 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 jurisdiction to serve as
guardian(s)/conservator(s) of the estate of K.J. upon submission of written
documentation of such appointment to the Secretary.
B. A lump sum payment of $37,418.89, representing compensation for
satisfaction of a State of New York Medicaid lien on K.J.’s behalf, payable
jointly to petitioners and
HMS, Inc.
Estate & Casualty Recovery Unit
P.O. Box 167887
Irving, TX 75016
Medicaid ID: 189705
Petitioners agree to endorse this payment to the State of New York. These
amount represents compensation for all damages that would be available under
§ 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
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
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
_________________________________________
LINCOLN JOHN and DASWATTIE JOHN, ) ECF-SPU
As Parents and Natural Guardians of, )
K.J., a minor child, )
)
Petitioners, )
)
v. ) No. 16-574V
) Chief Special Master
SECRETARY OF HEALTH AND HUMAN ) Nora Beth Dorsey
SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 12, 2016, Lincoln John and Daswattie John (“petitioners”), filed a petition for
vaccine injury compensation alleging that the influenza (“flu”) vaccine, varicella vaccine,
measles-mumps-rubella (“MMR”) vaccine, and hepatitis A (“Hep A”) vaccine, administered to
their minor son, K.J., on May 12, 2014, and/or the diphtheria-tetanus-acellular pertussis
(“DTaP”) vaccine, haemophilus influenza type B (“HIB”) vaccine, and pneumococcal conjugate
(“Prevnar”) vaccine, administered to him on June 12, 2014, caused him to develop
Guillain-Barré Syndrome (“GBS”).
On September 22, 2017, respondent filed his Rule 4(c) Report electing not to contest
entitlement in this matter, and the Chief Special Master’s Ruling on Entitlement was issued the
same day. Respondent now files this Proffer regarding compensation to be awarded to
petitioners, on K.J.’s behalf, under the terms of the Vaccine Act.
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I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioners, on K.J.’s behalf,
should be awarded $152,418.89, consisting of pain and suffering in the amount of $115,000.00
and funds to satisfy a State of New York Medicaid lien in the final amount of $37,418.89, which
represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action
that the State of New York may have against any individual as a result of any Medicaid payments
the State of New York has made on behalf of K.J. from the date of his eligibility for benefits
through the date of judgment in this case as a result of his vaccine-related injury under Title XIX
of the Social Security Act.
The proffered amount of $152,418.89 represents all elements of compensation to which
petitioners would be entitled on K.J.’s behalf under 42 U.S.C. § 300aa-15(a). 1 Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to petitioners should be made
through a combination of lump sum payments as described below, and request that the Chief
Special Master’s decision and the Court’s judgment award the following:
A. A lump sum payment of $115,000.00 representing compensation for K.J.’s pain and
suffering in the form of a check payable to petitioners as guardians/conservators of the estate of
K.J. for the benefit of K.J. No payment shall be made until petitioners provide the Secretary
with documentation establishing their appointment as guardians/conservators of K.J.’s estate. If
petitioners are not authorized by a court of competent jurisdiction to serve as
1
Should K.J. 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
guardians/conservators of the estate of K.J. 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
jurisdiction to serve as guardian(s)/conservator(s) of the estate of K.J. upon submission of written
documentation of such appointment to the Secretary.
B. A lump sum payment of $37,418.89, representing compensation for satisfaction of a
State of New York Medicaid lien on K.J.’s behalf, payable jointly to petitioners and
HMS, Inc.
Estate & Casualty Recovery Unit
P.O. Box 167887
Irving, TX 75016
Medicaid ID: 189705
Petitioners agree to endorse this payment to the State of New York.
III. Summary of Recommended Payments Following Judgment
A. Lump Sum paid to petitioners : $115,000.00
B. Medicaid lien: $ 37,418.89
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
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s/Lisa A. Watts
LISA A. WATTS
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) 616-4099
DATED: February 5, 2018
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