Behar v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-280V
Filed: October 28, 2019
UNPUBLISHED
MICHAL BEHAR, Parent and Guardian
Ad Litem of RJB, a minor,
Petitioner, Special Processing Unit (SPU);
v. Damages Decision Based on Proffer;
Rotavirus Vaccine; Intussusception
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
William I. Goldsmith, Goldsmith & Hull, APC, Northridge, CA, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Corcoran, Chief Special Master:
On February 22, 2018, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that RJB suffered an intussusception as a result of
RJB’s May 20, 2015 rotavirus vaccination. Petition at Preamble, ¶¶ 8, 12. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On June 20, 2019, a ruling on entitlement was issued, finding petitioner entitled
to compensation for RJB’s intussusception. On October 25, 2019, respondent filed a
proffer on award of compensation (“Proffer”) indicating RJB should be awarded
$50,000.00 in compensation through a lump sum payment in the form of a check made
1I intend to post this decision on the United States Court of Federal Claims' website. 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. Because this unpublished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).
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).
payable to petitioner as the guardian/conservator of RJB, for the benefit of RJB. Proffer
at 1-2. In the Proffer, respondent represented that petitioner agrees with the proffered
award. Id. at 2. Based on the record as a whole, I find that petitioner is entitled to an
award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award RJB a lump sum
payment of $50,000.00 in the form of a check payable to petitioner, as the
guardian/conservator of RJB, for the benefit of RJB. 3 This amount represents
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. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to the Proffer:
No payments shall be made until petitioner provides respondent with documentation
establishing that she has been appointed as guardian/conservator of RJB’s estate. If
petitioner is not authorized by a court of competent jurisdiction to serve as
guardian/conservator of the estate of RJB, any such payment shall be made to the party
or parties appointed by a court of competent jurisdiction to serve as guardian/conservator
of the estate of RJB upon submission of written documentation of such appointment to the
Secretary.
Proffer at 2.
4 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.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
MICHAL BEHAR, Parent and Guardian Ad
Litem of RJB, a minor,
No. 18-280V
Petitioner, Chief Special Master Corcoran
v. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
PROFFER ON AWARD OF DAMAGES
On February 22, 2018, Michal Behar (“petitioner”) filed a petition for compensation
(“Petition”), on behalf of her minor child, RJB, under the National Childhood Vaccine Injury Act
of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended. The Petition alleged
that RJB suffered from an intussusception four days after receipt of a rotavirus vaccination on May
20, 2015. See Petition at Preamble, ¶¶ 8, 12. Respondent conceded petitioner’s entitlement to
compensation in his Rule 4(c) Report filed on June 18, 2019. Based on Respondent’s Rule 4(c)
Report Chief Special Master Dorsey found petitioner entitled to compensation.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$50,000.00, which represents all elements of compensation to which RJB would be entitled
under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Respondent recommends that compensation provided to RJB should be made through a
lump sum payment of $50,000.00, in the form of a check made payable to petitioner as the
1
guardian/conservator of RJB, for the benefit of RJB. 1 No payments shall be made until
petitioner provides respondent with documentation establishing that she has been appointed as
guardian/conservator of RJB’s estate. If petitioner is not authorized by a court of competent
jurisdiction to serve as guardian/conservator of the estate of RJB, any such payment shall be
made to the party or parties appointed by a court of competent jurisdiction to serve as
guardian/conservator of the estate of RJB upon submission of written documentation of such
appointment to the Secretary. Petitioner agrees.
Respectfully submitted,
JOSEPH 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
s/Jennifer L. Reynaud
JENNIFER L. REYNAUD
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) 305-1586
Date: October 25, 2019
1
Should RJB die prior to the 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