        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 14-1112V
                                       Filed: June 11, 2015
                                           Unpublished

****************************
P.H., by and through his parent and,       *
Natural guardian, ASHLEY PUROLL,           *
                                           *     Concession on Entitlement;
                    Petitioner,            *     Damages Decision Based on Proffer;
                                           *     Rotavirus Vaccine; Intussusception;
                                           *     Surgical Intervention;
SECRETARY OF HEALTH                        *     Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                        *
                                           *
                    Respondent.            *
                                           *
****************************
Paul Brazil, Esq., Muller Brazil, LLP, Philadelphia, PA, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC for respondent.

                                DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

       On November 14, 2014, Ashley Puroll filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the
“Vaccine Act” or “Program”] on behalf of her son, P.H. Petitioner alleges that P.H.
suffered intussusception requiring surgical intervention which was caused by the
rotavirus vaccine he received on August 12, 2014. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.

        On June 10, 2015, respondent filed a document conceding that petitioner is
entitled to compensation in this case and proffering an award to which petitioner agrees.
Respondent’s Rule 4(c) Report and Proffer on Damages [“Rule 4(c) Report and Proffer”]
at 1, 3-4. Specifically, respondent agrees that “PH’s intussusception was caused in fact

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post it on the United States Court of Federal Claims' website, in accordance with the E-Government
Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). 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.

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 (2006).
by the rotavirus vaccine that he received on August 12, 2014[,] [t]he temporal
association between the administration of PH’s rotavirus vaccine and the onset of his
intussusception is medically appropriate, and there is no other identifiable alternate
cause for PH’s onset of intussusception.” Id. at 3. Respondent further agrees that all
jurisdictional and statutory issues have been satisfied to include the requirements of
§ 11(c)(1)(D)(i) which are satisfied by P.H.’s inpatient hospitalization and surgical
intervention. Id.

       In view of respondent’s concession and the evidence before me, I find that
petitioner is entitled to compensation.

       Respondent indicates that petitioner should be awarded $36,000.00 for actual
and projected pain and suffering and $23,070.45 to satisfy the State of Michigan
Medicaid lien for a total amount of $59,070.45. Rule 4(c) Report and Proffer at 3.
Petitioner agrees. Id.

          Pursuant to the terms of the attached Proffer, I award the following:

         A lump sum payment of $36,000.00 in the form of a check payable to
          petitioner, Ashley Puroll, as guardian/conservator of P.H., for the benefit of
          P.H., representing compensation for P.H.’s pain and suffering;3

         A lump sum payment of $23,070.45, representing compensation for
          satisfaction of the State of Michigan Medicaid lien, payable jointly to
          petitioner and

                                    FIRST RECOVERY GROUP
                                       Attn: Patrick Cassidy
                                     26899 Northwestern Hwy
                                             Suite 250
                                       Southfield, MI 48033
                                             Petitioner

            representing compensation for satisfaction of the State of Michigan Medicaid
            lien.4

      These amounts represent compensation for all damages that would be available
under § 300aa-15(a).




3 Per the terms of the proffer “[n]o payments shall be made until petitioner provides respondent with
documentation establishing that she has been appointed as guardian/conservator of PH’s estate. If
petitioner is not authorized by a court of competent jurisdiction to serve as guardian/conservator of the
estate of PH, 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 PH upon submission of written
documentation of such appointment to the Secretary.” Rule 4(c) Report and Proffer at 5.

4   Petitioner agrees to endorse this payment to FIRST RECOVERY GROUP.
       The clerk of the court is directed to enter judgment in accordance with this
decision.5

                                        s/Denise K. Vowell
                                        Denise K. Vowell
                                        Chief Special Master




5
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
           Case 1:14-vv-01112-UNJ Document 18 Filed 06/10/15 Page 1 of 6



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


P.H., a minor, by and through his parent and
natural guardian, ASHLEY PUROLL,

               Petitioner,
                                                       No. 14-1112V
v.                                                     Chief Special Master Vowell
                                                       ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,

               Respondent.


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

       On November 14, 2014, Ashley Puroll (“petitioner”) filed a petition for compensation on

behalf of her minor child PH, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.

§§ 300aa-1 to -34 (“Vaccine Act” or “Act”), as amended. Petitioner alleges that as a result of

receiving a rotavirus vaccine on August 12, 2014, PH suffered from intussusception requiring

surgical intervention. Petition at Introduction. Petitioner filed PH’s medical records, designated as

Petitioner’s Exhibits (“Pet. Ex.”) 1 through 5, and a Statement of Completion.

       The facts of this case, as reflected in the Petition and accompanying documents, have been

reviewed by medical personnel at the Division of Injury Compensation Programs, Department of

Health and Human Services (“DICP”). Their opinion is that this case is appropriate for

compensation under the terms of the Vaccine Act based on causation-in-fact.

                                          FACTUAL SUMMARY

       Born on June 2, 2014, PH was growing and developing normally, suffering only routine

childhood illnesses, during his first two months of life. Petitioner’s Exhibit (“Pet. Ex.”) 1 at 11-

16, 37). On August 12, 2014, at his two-month-old check-up, PH received Diphtheria, Tetanus,

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           Case 1:14-vv-01112-UNJ Document 18 Filed 06/10/15 Page 2 of 6



acellular Pertussis (“DTaP”); Haemophilus Influenzae type b (“Hib”); Hepatitis B (“Hep B”);

inactivated polio virus (“IPV”); pneumococcal (“PCV”); and rotavirus vaccinations. Id. at 7-10.

Five days later, on the evening of August 17, 2014, petitioner called the pediatrician to report

that PH had been refusing to eat and had been vomiting for hours. Id. at 6. She was advised to

take him to the emergency room (ER). Id. PH was examined in the Mercy Health ER around

11:00 p.m. that evening, but he was sent home after a chest x-ray and abdominal exam showed

nothing abnormal. Pet. Ex. 2 at 11-12, 20.

       When PH’s become increasingly lethargic with no bowel movements and a decreased

urine output for three days, petitioner took him to the North Ottawa Community Hospital ER on

August 19, 2014. Pet. Ex. 1 at 25. His abdomen was mildly distended and tender to palpitation.

Id. An abdominal x-ray revealed multiple distended loops of small bowel, suspicious of a small

bowel obstruction. Id. He was transferred to Spectrum Devos Children’s Hospital for a surgery

consult. Id. at 50-52. An upper-gastrointestinal study and an air contrast enema indicated an

intussusception with a bowl perforation that could not be reduced without surgery. Pet. Ex. 4 at

8-9. PH underwent surgery for reduction of intussusception and an appendectomy. Pet. Ex. 1 at

65-66. The resection of his bowel was approximately four centimeters long. Id. Afterwards, PH

initially had vomiting and fussiness, but by August 22, 2014, he was able to be discharged home.

Id.

       When PH returned to the surgery clinic on September 4, 2014, he was doing well. Pet.

Ex. 1 at 89. For more than five months after the surgery however, PH suffered from recurrent

constipation that his pediatrician believed was related to the intussusception. Pet. Ex. 5 at 1.




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             Case 1:14-vv-01112-UNJ Document 18 Filed 06/10/15 Page 3 of 6



                                            ANALYSIS

        DICP has concluded that PH’s intussusception was caused in fact by the rotavirus vaccine

that he received on August 12, 2014. The temporal association between the administration of

PH’s rotavirus vaccine and the onset of his intussusception is medically appropriate, and there is

no other identifiable alternate cause for PH’s onset of intussusception. Thus, causation-in-fact is

supported by the record and petitioner has satisfied the legal prerequisites for compensation

under the Vaccine Act.

        With respect to other statutory and jurisdictional issues, the record shows that the case

was timely filed, that PH received a vaccine set forth in the Vaccine Injury Table, and that the

vaccine was received in the United States. Further, based on the medical records outlined above,

PH underwent inpatient hospitalization and surgical intervention, thus, satisfying the

requirements of Section 11(c)(1)(D)(i) of the Vaccine Act. The Petition states that no civil

action or proceedings have been pursued in connection with PH’s vaccine-related injury. See 42

U.S.C. §§ 300aa-11(a)(5) and 300aa-11(c)(1)(E).

        Therefore, respondent concedes that entitlement to compensation is appropriate under the

terms of the Vaccine Act. The scope of damages to be awarded is limited to PH’s intussusception

and its related sequella.

                        PROFFER ON AWARD OF COMPENSATION

 I.     Items of Compensation

        A.      Future Unreimbursable Expenses

        The parties agree that based upon the evidence of record, PH will not require future care

for his vaccine-related injury. Therefore, respondent proffers that petitioner should be awarded

no future unreimbursable expenses under 42 U.S.C. § 300aa-15(a)(1). Petitioner agrees.



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                Case 1:14-vv-01112-UNJ Document 18 Filed 06/10/15 Page 4 of 6



           B.       Lost Future Earnings

           The parties agree that based upon the evidence of record, PH will be gainfully employed

in the future. Therefore, respondent proffers that petitioner should be awarded no anticipated

loss of earnings under 42 U.S.C. § 300aa-15(a)(3)(B). Petitioner agrees.

           C.       Pain and Suffering

           Respondent proffers that PH should be awarded $36,000.00 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. 1 See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

           D.       Past Unreimbursable Expenses

           The parties agree that based upon the evidence of record, petitioner has no past

unreimbursable expenses related to PH’s vaccine-related injury. Respondent proffers that

petitioner should be awarded no past unreimbursable expenses. Petitioner agrees.

           E.       Medicaid Lien

           Respondent proffers that PH should be awarded funds to satisfy the State of Michigan

Medicaid lien in the amount of $23,070.45, which represents full satisfaction of any right of

subrogation, assignment, claim, lien, or cause of action the State of Michigan may have against

any individual as a result of any Medicaid payments the State of Michigan has made to or on

behalf of PH from the date of his eligibility for benefits through the date of judgment in this case

as a result of his vaccine-related injury suffered on or about August 12, 2014, under Title XIX of

the Social Security Act.

II.        Form of the Award

           The parties recommend that compensation provided to PH should be made through lump

sum payments as described below and request that the Chief Special Master’s decision and the


1
    Should PH die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief.
                                                             4
            Case 1:14-vv-01112-UNJ Document 18 Filed 06/10/15 Page 5 of 6



Court’s judgment award the following:

       A. A lump sum payment of $36,000.00, representing compensation for pain and

suffering, in the form of a check payable to petitioner as guardian/conservator of PH, for the

benefit of PH. No payments shall be made until petitioner provides respondent with

documentation establishing that she has been appointed as guardian/conservator of PH’s estate.

If petitioner is not authorized by a court of competent jurisdiction to serve as

guardian/conservator of the estate of PH, 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

PH upon submission of written documentation of such appointment to the Secretary.

       B.    A lump sum payment of $23,070.45, representing compensation for satisfaction of

the State of Michigan Medicaid lien, payable jointly to petitioner and

                                   FIRST RECOVERY GROUP
                                       Attn: Patrick Cassidy
                                     26899 Northwestern Hwy
                                             Suite 250
                                       Southfield, MI 48033

Petitioner agrees to endorse this payment to the above payee.

III.   Summary of Recommended Payments Following Judgment

       A.      Lump sum paid to petitioner as guardian/conservator of
               PH’s estate:                                                         $36,000.00

       B.      Reimbursement for Medicaid Lien:                                     $23,070.45



                                              Respectfully submitted,

                                              BENJAMIN C. MIZER
                                              Principal Deputy Assistant Attorney General

                                              RUPA BHATTACHARYYA
                                              Director
                                              Torts Branch, Civil Division

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         Case 1:14-vv-01112-UNJ Document 18 Filed 06/10/15 Page 6 of 6




                                   VINCENT J. MATANOSKI
                                   Deputy Director
                                   Torts Branch, Civil Division

                                   MICHAEL P. MILMOE
                                   Senior Trial Counsel
                                   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: June 8, 2015




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