       In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                     Case No. 15-1083V
                                   Filed: August 31, 2016
                                   (Not to be published)

***********************
REBECCA SWANICK, on behalf of J.S.*
                                       *
                    Petitioner,        *         Decision on Damages; Flumist;
v.                                     *         Hepatitis A; Menactra
                                       *         Tetanus-Diphtheria-acellular-Pertussis;
SECRETARY OF HEALTH                    *         Syncopal Episode.
AND HUMAN SERVICES,                    *
                                       *
                    Respondent.        *
                                       *
***********************
Brian S. McCormick, Orlando & Associates, Gloucester, MA for petitioner.
Michael P. Milmoe, United States Department of Justice, Washington, DC for respondent.

                                  DECISION ON DAMAGES1

Gowen, Special Master:

       On September 28, 2015, Rebecca Swanick (“petitioner”) filed a petition on behalf of her
minor daughter, J.S., for compensation under the National Vaccine Injury Compensation Program,
42 U.S.C. §300aa-10, et seq.2 [the “Vaccine Act” or “Program”]. Petitioner alleged that J.S.
suffered a syncopal episode resulting in a fractured jaw and broken teeth as a result of the
administration of Flumist, Hepatitis A, Tetanus-Diphtheria-acellular-Pertussis, and Menactra
vaccines on October 15, 2012. Petition at Preamble, ¶ 2, filed Sept. 28, 2015. On August 31, 2016

1
  Because this unpublished ruling contains a reasoned explanation for the action in this case, I
intend to post this ruling 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 delete 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 delete 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).

                                                 1
respondent filed a Rule 4(c) Report [“Respondent’s Report”] in which she conceded that petitioner
was entitled to compensation. Resp’t Report at 1. The undersigned issued a Ruling on Entitlement
on that same day, finding petitioner as entitled to compensation based on an injury caused-in-fact
by one or more of the vaccines at issue.

        Respondent also filed a Proffer on an award of compensation as part of her Report,
indicating that petitioner has agreed to compensation in the amount of $90,000.00, for all elements
of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Pursuant to
the terms in the attached Proffer, the undersigned awards petitioner the following
compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a):

       1. A lump sum payment of $90,000.00 in the form of a check payable to petitioner,
          Rebecca Swanick, as guardian/conservator of J.S.’s estate.

The clerk of the court is directed to enter judgment in accordance with this decision.3

       IT IS SO ORDERED.


                                      s/Thomas L. Gowen
                                      Thomas L. Gowen
                                      Special Master




3
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


                                                 2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS


REBECCA SWANICK, on behalf of J.S.,

               Petitioner,

v.                                                   No. 15-1083V
                                                     Special Master Gowen
SECRETARY OF HEALTH AND                              ECF
HUMAN SERVICES,

               Respondent.


        RESPONDENT’S RULE 4(c) REPORT AND PROFFER ON DAMAGES

       On behalf of her daughter, J.S., Rebecca Swanick (“petitioner”) filed a petition for

compensation (“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.

§§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended, on September 28, 2015. The Petition

alleges that J.S. received four vaccines on October 15, 2012, including Flumist, Hepatitis A,

Tdap, and Menactra, and subsequently suffered a syncopal episode which was caused-in-fact by

the four vaccinations. Petition at 1.

       Medical personnel at the Division of Injury Compensation Programs (“DICP”) at the

Department of Health and Human Services have reviewed the Petition and medical records

filed in the case to determine whether petitioner qualifies for compensation under the Vaccine

Act. DICP has concluded that compensation is appropriate in this case. In accordance with

Vaccine Rule 4(c), the Secretary of Health and Human Services (“respondent”) submits the

following as her responsive report.

                                    FACTUAL SUMMARY

        On October 15, 2012, J.S. was seen by her pediatrician, Dr. Silva, for an annual

physical. J.S. was twelve years-old and wore braces. The pediatrician noted that J.S.’s mother
                                               1
requested the vaccines be administered prior to the start of the physical examination. Flumist,

Hep A, Tdap, and Menactra vaccines were administered by a nurse. Dr. Silva heard a yell

from the patient’s room and found J.S. face down on the floor, perpendicular to the table,

initially stiff and unconscious. The pediatrician rolled her over and stabilized her neck. J.S.

regained consciousness almost immediately. She was initially pale and sweaty with a normal

heart rate and respirations. Her blood pressure was 80/50. There was a small amount of blood

on her teeth and a small abrasion and bruise on her chin. She was given ice and ibuprofen and

once fully conscious, J.S. was helped to the table for an exam. Her sitting blood pressure was

recorded as 112/64. Petitioner’s Exhibit (“Pet. Ex.”) 2 at 7-14.

       The physical exam showed J.S. to be alert and cooperative, but tearful and complaining

of pain in her left jaw. She was unable to open her jaw due to pain. She had a small laceration

of her tongue and spit out numerous teeth chips, one of which had her braces bracket on it. An

upper molar was fractured, but in place. She had a small abrasion on her right chin. The rest

of her exam was normal. The plan was to send her for an x-ray and then for her to go to the

orthodontist for the fractured teeth. Pet. Ex. 2 at 12-14. Dr. Silva noted that the x-ray showed

a mandible fracture and TMJ dislocation. Id. at 14. Dr. Silva sent J.S. to the emergency room

for a CT of her jaw. Id. at 16.

       J.S. was seen in the emergency room at 3:43 p.m., and it was noted that she had at least

four dental fractures. The history noted that there had been no syncopal episodes in the past

and J.S. was otherwise healthy. A CT scan was performed that showed an angulated fracture

of the left mandible and disruption of the TMJ. She was referred to the oral surgeon on call in

the hospital who set her jaw with wire. Pet. Ex. 4 at 30-32.




                                                2
       Dr. Silva’s office filed a filed a VAERS report. Pet. Ex. 2 at 15. The VAERS report

was prepared by Nancy Burgess, LPN, who noted that the syncopal event occurred about ten

minutes following receipt of the four vaccinations. Id.

       By October 26, 2014, J.S. could open and close her jaw without pain and could eat food

that was cut up in small pieces. However, she was not eating and had lost approximately ten

pounds. She was cleared to return to sports. Pet. Ex. 2 at 20.

       J.S. suffered four fractured teeth as a result of the syncopal event, and all four required

dental repair. Her dentist has written a narrative report indicating that teeth #13 and #31

required multiple restorations and may require root canal therapy in the future. The dentist

also indicated that teeth #22 and #23 may need additional restorations or crowns in the future

due to sensitivity. Pet. Ex. 10 at 1. Her last dental treatment was on October 20, 2014, more

than two years after her syncopal event. Her dental issues delayed her orthodontic care and

removal of her braces by a period of at least nine months. Id.

                                          ANALYSIS

       DICP believes that J.S.’s syncopal event is related to the administration of one or more

of the vaccines she received on October 15, 2012. DICP agrees that J.S.’s alleged injury was

caused-in-fact by one or more of her vaccinations and that no other cause for J.S.’s condition

has been identified. See 42 U.S.C. § 300aa-13(a)(1)(B). Based on the medical records

outlined above, J.S. suffered the residual effects of her condition for more than six months.

See id. at § 300aa-11(c)(1)(D)(i). Therefore, based on the record as it now stands, petitioner

has satisfied all legal prerequisites for compensation under the Act.




                                                3
                       PROFFER ON AWARD OF COMPENSATION

I.      Items of Compensation

         Based upon the evidence of record, respondent proffers that petitioner should be

awarded $90,000.00 which represents all elements of compensation to which petitioner would

be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II.      Form of the Award

         Respondent recommends that the compensation provided to petitioner should be made

through a lump sum payment as described below, and requests that the Special Master’s

decision and the Court’s judgment award the following: 1

      A. A lump sum payment of $90,000.00 in the form of a check payable to petitioner,
         Rebecca Swanick, as guardian/conservator of J.S.’s estate. This amount accounts for
         all elements of compensation under 42 U.S.C. § 300aa-15(a) to which petitioner would
         be entitled.

No payments shall be made until petitioner provides respondent with documentation

establishing that she has been appointed as the guardian/conservator of J.S.’s estate.

                                              Respectfully submitted,

                                              BENJAMIN C. MIZER
                                              Principal Deputy Assistant Attorney General

                                              C. SALVATORE D’ALESSIO
                                              Acting Director
                                              Torts Branch, Civil Division

                                              CATHARINE E. REEVES
                                              Acting Deputy Director
                                              Torts Branch, Civil Division




1
 Should J.S. die prior to entry of judgment, respondent reserves the right to move the Court for
appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future pain and suffering, and future lost wages.


                                                4
                        ALTHEA WALKER DAVIS
                        Senior Trial Counsel
                        Torts Branch, Civil Division

                         s/Michael P. Milmoe
                        MICHAEL P. MILMOE
                        Senior Trial Counsel
                        Torts Branch, Civil Division
                        U.S. Department of Justice
                        P.O. Box 146
                        Benjamin Franklin Station
                        Washington, D.C. 20044-0146
                        Tel: (202) 616-4125

Date: August 31, 2016




                          5
