Oaks v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0309V
UNPUBLISHED
KATHRYN OAKS and LUKE OAKS, on Chief Special Master Corcoran
behalf of R.O., a minor child,
Filed: August 10, 2020
Petitioners,
v. Special Processing Unit (SPU);
Damages Decision Based on Proffer;
SECRETARY OF HEALTH AND Measles Mumps Rubella (MMR)
HUMAN SERVICES, Vaccine; Thrombocytopenic Purpura
(ITP)
Respondent.
Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioners.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On February 27, 2019, Kathryn Oaks and Luke Oaks filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq.2 Petitioners allege that R.O. suffers from immune thrombocytopenia
purpura as a result of a measles, mumps, rubella, and varicella vaccine administered to
R.O. on August 15, 2016. See generally Petition. Petitioners further allege that R.O.’s
injuries have lasted more than six months. Petition at 4. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On May 23, 2019, a ruling on entitlement was issued, finding Petitioners entitled
to compensation. On August 10, 2020, Respondent filed a proffer on award of
compensation (“Proffer”) indicating Petitioners should be awarded a total of $176,500.00
representing $150,000.00 of compensation for pain and suffering, and $11,500.00 for
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am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). 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.
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).
past out-of-pocket expenses, and $15,000.00 for future out-of-pocket expenses related
to R.O.’s future medical care. Proffer at 2. In the Proffer, Respondent represented that
Petitioners agree with the proffered award. Id. Based on the record as a whole, I find that
Petitioners are entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioners the
following:
A. A lump sum payment of $150,000.00, representing compensation for
pain and suffering, in the form of a check payable to Petitioner(s) as
guardian/conservator of R.O., for the benefit of R.O. No payment shall
be made until Petitioners provides Respondent with documentation
establishing that he or she has been appointed guardian/conservator of
R.O.
B. A lump sum payment of $26,500.00 representing compensation for past
and future out-of-pocket expenses in the form of a check payable to
Petitioners.
These amounts represent 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.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
KATHRYN OAKS and LUKE OAKS, ) No. 19-309V
on behalf of R.O., a minor child, )
) Chief Special Master Brian H. Corcoran
Petitioners, ) ECF
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 23, 2019, respondent filed a Rule 4(c) Report conceding that petitioners are
entitled to vaccine compensation on behalf of minor R.O., for R.O.’s immune thrombocytopenia
purpura (“ITP”) suffered following receipt of a measles, mumps, rubella, and varicella
(“MMRV”) vaccine on August 15, 2016. On May 23, 2019, the Court issued a Ruling on
Entitlement, adopting respondent’s recommendation. Respondent now proffers the following
regarding the amount of compensation to be awarded, which encompass all elements of damages
petitioner would be entitled to under 42 U.S.C. § 300aa-15(a). 1
I. Compensation for Vaccine Injury-Related Items
A. Pain and Suffering
Respondent proffers that R.O. should be awarded $150,000.00 in actual and projected
pain and suffering. See 42 U.S.C. § 300aa-15(a)(4). Petitioners agree.
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Should R.O. die prior to entry of judgment, the parties reserve the right to move the Court for
appropriate relief.
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B. Out of Pocket Expenses
Respondent proffers that petitioners should be awarded $11,500.00 for past out of pocket
expenses, and $15,000.00 for future out of pocket expenses related to R.O.’s future medical care.
See 42 U.S.C. § 300aa-15(a)(1). Petitioners agree.
II. Form of the Award
The parties recommend that the compensation provided to R.O. and petitioners should be
made through lump sum payment 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 $150,000.00 representing compensation for pain and suffering,
in the form of a check payable to petitioner(s) as guardian/conservator of R.O., for the benefit of
R.O. No payment shall be made until petitioner provides respondent with documentation
establishing that he or she has been appointed guardian/conservator of R.O.
B. A lump sum payment of $26,500.00 representing compensation for past and future out of
pocket expenses in the form of a check payable to petitioners.
III. Guardianship
No payments shall be made until petitioners provide respondent with documentation
establishing that he/she has been appointed as the guardian/conservator of R.O. If petitioner is
not authorized by a court of competent jurisdiction to serve as guardian/conservator of R.O., any
such payment shall be made to the party or parties appointed by a court of competent jurisdiction
to serve as guardian/ conservator of R.O. upon submission of written documentation of such
appointment to the Secretary.
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Respectfully submitted,
ETHAN P. DAVIS
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
/s/ Kyle E. Pozza__________
KYLE E. POZZA
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-3661
Kyle.Pozza@usdoj.gov
Dated: August 10, 2020
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