Brian Rife and Anne Rife, Parents of B.R., a Minor v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-392V
Filed: April 3, 2013
************************* NOT TO BE PUBLISHED
BRIAN RIFE and ANNE RIFE, *
parents of B.R., a minor, *
* Special Master Zane
Petitioners, *
v. * Damages; Proffer on award
* of compension; inactivated
* polio vaccine (IPV); diphtheria-tetanus-
SECRETARY OF HEALTH * acellular-pertussis (DTaP);
AND HUMAN SERVICES, * haemophilus influenza vaccine (Hib);
* pneumococcal conjugate vaccine;
Respondent. * liability conceded.
*
*************************
Ronald C. Homer, Conway, Homer & Chin-Caplan, Boston, MA, for Petitioner
Gordon E. Shemin, United States Dep’t of Justice, Washington, D.C., for Respondent
UNPUBLISHED DECISION AWARDING DAMAGES1
On June 19, 2012, Brian and Anne Rife (“Petitioners”) filed a petition for compensation
under the National Childhood Vaccine Injury Act of 1986 (“the Vaccine Act”), 42 U.S.C. §
300a-10, et seq., as amended on behalf of B.R., a minor. Petitioners alleged that as a result of
receiving the inactivated polio vaccine, the diphtheria-tetanus-acellular-pertussis vaccine, the
haemophilus influenza vaccine, and the pneumococcal conjugate vaccine, all on August 25,
2009, B.R. developed sterile abscesses. Petition at 1. On September 13, 2012, Respondent filed
1
Because this decision contains a reasoned explanation for the Special Master’s action in this
case, the Special Master intends to post it on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 113 Stat. 2899,
2913 (Dec. 17, 2002). All decisions of the Special Master will be disclosed and made available
to the public unless they contain trade secret or commercial or financial information that is
privileged and confidential, or medical and similar files the disclosure of which would constitute
a clearly unwarranted invasion of privacy. When such a decision or designated substantive order
is filed, a party has 14 days to identify and to move to redact such information before the
document’s disclosure. If the Special Master, upon review, agrees that the identified material fits
within the banned categories listed above, the Special Master shall redact such material from
public access. 42 U.S.C. § 300aa-12 (d) (4); Vaccine Rule 18 (b). In the absence of a motion or
should the Special Master disagree with the proposed redactions, the decision shall be disclosed
in its entirety.
.
her Report in accordance with Vaccine Rule 4(c), recommending that compensation under the
Act be awarded in this case. Thereafter, on October 9, 2012, undersigned issued a ruling, finding
that Petitioners were entitled to compensation. Also, on that same date, undersigned issued a
order providing guidance and a schedule for resolving the issues relating to damages.
On March 29, 2013, Respondent filed a Proffer on Award of Compensation (“Proffer”),
to which Petitioner agrees. Based upon the record as a whole, the undersigned finds the Proffer
reasonable and finds that Petitioner is entitled to an award as stated in the Proffer. Pursuant to
the Proffer, attached as Appendix A and Tab A thereto, the undersigned awards Petitioner:
A. A lump sum payment of $35,000.00, representing the actual and projected pain
and suffering, in the form of a check payable to Brian and Anne Rife, as the
guardians/conservators of B.R.’s estate, for the benefit of B.R.; and
B. A lump sum payment of $1,667.18, representing compensation for payment for
past unreimbursed expenses, in the form of a check payable to Brian and Anne
Rife, petitioners.
The Court thanks the parties for their cooperative efforts in resolving this matter. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is
directed to enter judgment consistent with this decision.2
IT IS SO ORDERED.
/s/ Daria J. Zane
Daria J. Zane
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party
filing a notice renouncing the right to seek review by a United States Court of Federal Claims
judge.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
BRIAN RIFE and ANNE RIFE, )
parents of B.R., a minor, )
)
Petitioners, ) No. 12-392V
) Special Master Zane
v. ) ECF
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
PROFFER ON AWARD OF COMPENSATION
I. Items of Compensation
A. Life Care Items
Respondent proffers that B.R. is not entitled to an award for future vaccine-related
medical care. Petitioners agree.
B. Lost Future Earnings
Respondent proffers that B.R. is not entitled to an award for future lost earnings.
Petitioners agree.
C. Pain and Suffering
Respondent proffers that B.R. should be awarded $35,000.00 in actual and projected pain
and suffering. This amount reflects that the award for projected pain and suffering has been
reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
D. Past Unreimbursable Expenses
Evidence supplied by petitioners demonstrates their expenditure of past unreimbursable
expenses related to B.R.’s vaccine-related injury. Respondent proffers that petitioners should be
awarded past unreimbursable expenses in the amount of $1,667.18. Petitioners agree.
E. Medicaid Lien
Petitioners represent that there are no Medicaid liens outstanding against B.R.
II. Form of the Award
The parties recommend that the compensation provided to B.R. should be made through a
lump sum payment as described below, and request that the Special Master’s decision and the
Court’s judgment award the following:
A. A lump sum payment of $35,000.00 in the form of a check payable to petitioners,
Brian and Anne Rife, as the guardians/conservators of B.R.’s estate, for the benefit of B.R. No
payments shall be made until petitioners provide respondent with documentation establishing
that they have been appointed as the guardians/conservators of B.R.’s estate; and
B. A lump sum payment of $1,667.18, representing compensation for past
unreimbursable expenses, payable to Brian and Anne Rife, petitioners.
1. Guardianship
No payments under Section II. A. shall be made until petitioners provide the Secretary
with documentation establishing their appointment as the guardian/conservator of B.R.’s estate.
If petitioners are not authorized by a court of competent jurisdiction to serve as
guardian/conservator of the estate of B.R. at the time a payment 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 B.R. upon submission of written documentation of
such appointment to the Secretary.
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III. Summary of Recommended Payments Following Judgment
A. Lump sum paid to petitioners as guardians/conservators
of B.R.’s estate: $35,000.00
B. Lump sum paid to petitioners: $1,667.18
Respectfully submitted,
STUART F. DELERY
Principal Deputy Assistant Attorney General
RUPA BHATTACHARYYA
Director
Torts Branch, Civil Division
VINCENT J. MATANOSKI
Deputy Director
Torts Branch, Civil Division
MICHAEL P. MILMOE
Senior Trial Counsel
Torts Branch, Civil Division
/s/ Gordon Shemin
GORDON SHEMIN
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, DC 20044-0146
Phone: (202) 616-4208
Dated: March 29, 2013 Fax: (202) 353-2988
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