        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 10-639V
                                      Filed: April 26, 2016

* * * * * * * * * * * *                    *              UNPUBLISHED
M.R., a minor, by and through his natural  *
parents and guardians, ANN ROBERTS,        *
and DUSTIN ROBERTS,1                       *
                                           *
                     Petitioners,          *              Chief Special Master Dorsey
                                           *
v.                                         *              Decision on Proffer; Damages;
                                           *              Diphtheria-Tetanus-Acellular-
SECRETARY OF HEALTH                        *              Pertussis (DTaP) Vaccine;
AND HUMAN SERVICES,                        *              Haemophilus Influenza Type B (Hib)
                                           *              Vaccine; Measles Mumps Rubella
                     Respondent.           *              (MMR) Vaccine; Varicella Vaccine;
                                           *              Prevnar Vaccine; Seizure Disorder
* * * * * * * * * * * * *
Lawrence G. Michel, Kennedy, Berkeley, et al., Salina, KS, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, D.C., for respondent.

                               DECISION AWARDING DAMAGES2

        On September 23, 2010, Ann Roberts (“petitioner”), as the parent and natural guardian of
M.R., a minor, filed a petition pursuant to the National Vaccine Injury Compensation Program.3
42 U.S.C. §§ 300aa-1 to 34 (2012). Petitioner alleged that diphtheria-tetanus-acellular-pertussis
(“DTaP”), measles-mumps-rubella (“MMR”), haemophilus influenza type B (“Hib”), and
varicella vaccinations on February 21, 2008, and a Prevnar vaccination on March 17, 2008,

1
 The case caption has been changed pursuant to the May 4, 2016, Order granting petitioner’s motion to
amend the case caption to include M.R.’s father, Dustin Roberts.

2
 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).

3
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C.A. § 300aa.
caused M.R. to suffer from a seizure disorder. Petition at 1-2. The undersigned issued a Ruling
on Entitlement on September 24, 2014, finding petitioner entitled to compensation based on an
injury caused-in-fact by a covered vaccine.

        On April 22, 2016, respondent filed a Proffer on an award of compensation, indicating
that petitioner has agreed to compensation as follows: $160,000.00 in actual and projected pain
and suffering; $45,732.29 in past unreimbursable expenses; and $8,816.20 to satisfy the State of
Kansas Medicaid lien. Proffer at ¶ IA-D.

      Pursuant to the terms in the Proffer, attached hereto as Appendix A, 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 $160,000.00, representing compensation for pain and
           suffering, in the form of a check payable to petitioner as guardian/conservator of
           M.R., for the benefit of M.R.;

        2. A lump sum payment of $45,732.29 in the form of a check payable to petitioner,
           representing compensation for past unreimbursed expenses; and

        3. A lump sum payment of $8,816.20, representing compensation for satisfaction of
           the State of Kansas Medicaid lien, payable jointly to petitioner and

                                          Kansas Medicaid Subrogation
                                             6021 S.W. 29th Street
                                                 Suite A, #373
                                               Topeka, KS 66614
                                             Attn: Nikki Thyfault

        The clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




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.

                                                     2
                IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS
_________________________________________
                                              )
M.R., a minor, by and through his             )
natural parent and guardian, ANN ROBERTS,     )
                                              )
                         Petitioner,          )   No. 10-639V
v.                                            )   Chief Special Master Dorsey
                                              )
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                               )
                                              )
                         Respondent.          )
__________________________________________)

                        RESPONDENT’S PROFFER OF DAMAGES

I.     Items of Compensation

       A.     Pain and Suffering

       Respondent proffers that M.R. should be awarded $160,000.00 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). Petitioner agrees.

       B.     Past Unreimbursable Expenses

       Petitioner has provided evidence of past unreimbursable expenses related to M.R.’s

vaccine-related injury. Respondent proffers that petitioner should be awarded past

unreimbursable expenses in the amount of $45,732.29. Petitioner agrees.

       C.     Lost Wages

       The parties agree that based upon the evidence of record, M.R.’s vaccine-related injury

has not impaired his earning capacity. Therefore, respondent proffers that petitioner should be

awarded no lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-

15(a)(3)(A). Petitioner agrees.



                                                1
         D.       Medicaid Lien

         Respondent proffers that M.R. should be awarded funds to satisfy the State of Kansas lien

in the amount of $8,816.20, which represents full satisfaction of any right of subrogation,

assignment, claim, lien, or cause of action the State of Kansas may have against any individual

as a result of any Medicaid payments the State of Kansas has made to or on behalf of M.R. 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 February 21, 2008, under Title XIX of the Social

Security Act. Petitioner agrees.

II.      Form of the Award

         The parties recommend that compensation provided to petitioner should be made through

a lump sum payment as described below and request that the Chief Special Master’s decision

and the Court’s judgment award the following: 1

         A.       A lump sum payment of $160,000.00, representing compensation for pain and

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

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

documentation establishing that she has been appointed as the guardian/conservator of M.R.’s

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

guardian/conservator of the estate of M.R., 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 M.R. upon submission of written documentation of such appointment to the Secretary;

         B.       A lump sum payment of $45,732.29 payable to petitioner, representing

compensation for past unreimbursed expenses;


1
 Should M.R. die prior to 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 and future pain and suffering.

                                                          2
       C.      A lump sum payment of $8,816.20, representing compensation for satisfaction of

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

                                  Kansas Medicaid Subrogation
                                     6021 S.W. 29th Street
                                         Suite A, #373
                                      Topeka, KS 66614
                                      Attn: Nikki Thyfault

Petitioner agrees to endorse this payment to the State of Kansas.

III.   Summary of Recommended Payments Following Judgment

       A.      Lump sum paid to petitioner as court-appointed
               guardian/conservator of M.R.’s estate:                           $ 160,000.00

       B.      Medicaid Lien:                                                   $    8,816.20

       C.      Past unreimbursed expenses                                       $ 45,732.29

                                             Respectfully submitted,

                                             BENJAMIN C. MIZER
                                             Principal Deputy Assistant Attorney General

                                             RUPA BHATTACHARYYA
                                             Director
                                             Torts Branch, Civil Division

                                             VINCENT J. MATANOSKI
                                             Deputy Director
                                             Tort Branch, Civil Division

                                             LINDA S. RENZI
                                             Senior Trial Counsel
                                             Torts Branch, Civil Division




                                                3
                        s/ Alexis B. Babcock
                        ALEXIS B. BABCOCK
                        Senior Trial Attorney
                        Torts Branch, Civil Division
                        U.S. Department of Justice
                        P.O. Box 146
                        Benjamin Franklin Station
                        Washington, D.C. 20044-0146
Dated: April 22, 2016   Telephone: (202) 616-7678




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