Vega v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-183V
Filed: June 4, 2019
************************
ROBERT RUPPENTHAL, Conservator of * UNPUBLISHED
the Estate of D.V.M., a minor child, *
* Case No. 13-183V
Petitioner, *
* Chief Special Master Dorsey
v. *
* Damages Award; Proffer; Diphtheria-
SECRETARY OF HEALTH * Tetanus-acellular Pertussis (“DTaP”)
AND HUMAN SERVICES, * Vaccine; Encephalopathy; Table Injury.
*
Respondent. *
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Howard S. Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.
Linda S. Renzi, United States Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On March 11, 2013, Haytor Vega and Lucia Martinez filed a petition for compensation
under the National Vaccine Injury Compensation Program (“the Program”)2 on behalf of their
minor son, D.V.M.3 Mr. Vega and Ms. Martinez alleged that the D.V.M. suffered an acute
encephalopathy within seventy-two hours of receiving a diphtheria-tetanus-acellular pertussis
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 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. § 300aa.
3
On August 27, 2018, Robert Ruppenthal was appointed conservator of D.V.M.’s estate. See
Petitioner’s Exhibit 39. Mr. Ruppenthal subsequently became the petitioner in this matter. See
Order dated Sept. 24, 2018 (ECF No. 110).
1
(“DTaP”) vaccine on March 12, 2010. Petition at 1, 4-5. On April 21, 2017, the undersigned
issued a decision finding that petitioner was entitled to compensation.
On November 29, 2018, respondent filed a Proffer on Award of Compensation
(“Proffer”).4 In the Proffer, respondent represented that petitioner agrees with the proffered
award. Proffer at 1-2. Based on the record as a whole, the undersigned finds that petitioner is
entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner:
(1) A lump sum payment of $250,000.00, representing compensation for pain and
suffering in the form of a check made payable to petitioner.
(2) A lump sum payment in the amount of $168,506.00, representing compensation
for life care plan expenses for the first year and partial expenses for 2051, in the
form of a check payable to Counsel Trust Company for the benefit of the
D.V.M. Reversionary Trust.
(3) A lump sum payment of $48,741.08, representing compensation for the past State
of Georgia Medicaid lien, made payable to the Georgia Department of Community
Health, 900 Circle 75 Parkway SE, Suite 650, Atlanta, GA 30339, ATTN: Yvette
Dimmons.5
(4) An amount sufficient to purchase the annuity contract described in section II.D
of the Proffer.
(5) An amount sufficient to purchase the annuity contract described in section II.E
of the Proffer.
Proffer at 3-5.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT herewith.6
4
A decision was entered awarding compensation to petitioner based on respondent’s Proffer on
November 30, 2018, and judgment was entered on December 17, 2018. The parties later filed a
joint motion to vacate the judgment, seeking to amend the form of the award. Joint Mot. dated
May 16, 2019 (ECF No. 121). The undersigned granted the motion, withdrew the original
decision, and vacated the judgment. Order dated May 31, 2019 (ECF No. 122).
5
In the Proffer, the parties agreed that this check should be made payable jointly to petitioner
and the Georgia Department of Community Health. Proffer at 3. In their joint motion, however,
the parties requested that this part of the award instead be made payable to the Georgia
Department of Community Health alone. Joint Mot. at 2.
6
Pursuant to Vaccine Rule 11(a), entry of judgment is 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
3