        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-0566V
                                      Filed: June 9, 2016
                                          Unpublished

****************************
RAFAEL CORREA and ZAPHIRA                *
BRITO, on behalf of A.C., a minor,       *
                                         *
                     Petitioner,         *     Damages Decision Based on Proffer;
v.                                       *     Rotavirus Vaccine; Intussusception;
                                         *     Surgical Intervention; Special
SECRETARY OF HEALTH                      *     Processing Unit (“SPU”)
AND HUMAN SERVICES,                      *
                                         *
                     Respondent.         *
                                         *
****************************
John Howie, Jr., Howie Law, P.C., Dallas, TX, for petitioner.
Adriana Teitel, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES 1

Dorsey, Chief Special Master:

        On June 3, 2015, petitioners filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”), on behalf of their minor daughter A.C. The petition alleged that A.C. suffered
intussusception due to the rotavirus vaccine she received on July 3, 2012. The case
was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

        On November 4, 2015, the undersigned issued a ruling on entitlement finding
petitioners entitled to compensation. (ECF No. 18). On June 8, 2016, respondent filed
a proffer on award of compensation (“Proffer”) indicating that compensation should be
awarded for A.C.’s actual pain and suffering and to satisfy a New York City Medicaid
lien. (ECF No. 34) According to the Proffer, the aforementioned compensation should
be made through a combination of a lump sum and future annuity payments. Id. No
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 (2012).
award should be made for future pain and suffering, past and future unreimbursable
expenses, and lost future earnings. Id. Respondent represents that petitioners agree
with the proffered award. Id.

        Based on the record as a whole, the undersigned finds that petitioners are
entitled to the award as stated in the attached Proffer. Thus, pursuant to the terms of
said Proffer, the undersigned awards petitioners the following:

        (A) A lump sum payment of $9,189.36, representing compensation for
            satisfaction of a New York City Medicaid lien, in the form of a check
            payable jointly to petitioners and

                                         Department of Social Services
                                                  New York City
                                        Human Resources Administration
                                         Division of Liens and Recovery
                                                P.O. Box 414799
                                            Boston, MA 02241-4799
                                                Case No: 717572

            Petitioners agrees to endorse this payment to New York City.

        (B) An amount sufficient to purchase an annuity contract, described in the
            Proffer Section II.B., that will provide payments to A.C. as set forth
            below:

                1. Beginning February 28, 2030, $26,910.87 payable annually for four
                   (4) years certain only.

             This amount represents all elements of compensation to which A.C.
             would be entitled under 42 U.S.C. § 300aa-15(a). Petitioners agree.
             Should A.C. predecease any of the certain payments set forth above,
             said payments shall be made to her estate. Id.

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

IT IS SO ORDERED.

                                          s/Nora Beth Dorsey
                                          Nora Beth Dorsey
                                          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


RAFAEL CORREA and ZAPHIRA BRITO,
on behalf of A.C., a minor,

                        Petitioners,
                                                         No. 15-566V
      v.                                                 Chief Special Master Dorsey
                                                         ECF

SECRETARY OF HEALTH AND
HUMAN SERVICES,

                        Respondent.

              RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.      Items of Compensation

        A.      Future Unreimbursable Expenses

        The parties agree that based upon the evidence of record, A.C. will not require future medical

or rehabilitative care for her vaccine-related injury. Therefore, respondent proffers that petitioners

should not be awarded future unreimbursable expenses on A.C.’s behalf under 42 U.S.C. § 300aa-

15(a)(1)(A). Petitioners agree.


        B.      Lost Future Earnings

        The parties agree that based upon the evidence of record, A.C. will not suffer a loss of

earnings capacity as a result of her vaccine-related injury. Therefore, respondent proffers that

petitioners should not be awarded anticipated loss of earnings on A.C.’s behalf under 42 U.S.C.

§ 300aa-15(a)(3)(B). Petitioners agree.




                                                    1
       C.      Pain and Suffering

       The parties agree that it is unlikely that A.C.’s vaccine-related injury will cause her pain and

suffering in the future. Respondent proffers that A.C. should be awarded compensation for actual

pain and suffering for her vaccine-related injury under 42 U.S.C. § 300aa-15(a)(4). Such

compensation shall be in the form of an annuity as set forth in section II.B below. Petitioners agree.

       D.      Past Unreimbursable Expenses

       The parties agree that based upon the evidence of record, A.C. did not incur any past

unreimbursable expenses as a result of her vaccine-related injury. Therefore, respondent proffers that

petitioners should not be awarded past unreimbursable expenses on A.C.’s behalf under 42 U.S.C. §

300aa-15(a)(1)(B). Petitioners agree.

       E.      Medicaid Lien

       Respondent proffers that A.C. should be awarded $9,189.36, which represents full

satisfaction of any right of subrogation, assignment, claim, lien, or cause of action New York

City may have against any individual as a result of any Medicaid payments that New York City

has made to or on behalf of A.C. from the date of her eligibility for benefits through the date of

judgment in this case as a result of her vaccine-related injury suffered on or about July 3, 2012,

under Title XIX of the Social Security Act. Such compensation shall be in the form of a lump

sum payment as forth in section II.A below. Petitioners agree.

II.    Form of the Award

       Based upon the evidence of record, respondent proffers, and the parties recommend, that

compensation be made through a combination of a lump sum and future annuity payments as

described below, and request that the Chief Special Master’s decision and the Court’s judgment

award the following:




                                                   2
           A.       A lump sum payment of $9,189.36, which amount represents reimbursement of a

New York City Medicaid lien, in the form of a check payable jointly to petitioners and


                                   DEPARTMENT OF SOCIAL SERVICES
                                               New York City
                                      Human Resources Administration
                                       Division of Liens and Recovery
                                              P.O. Box 414799
                                          Boston, MA 02241-4799
                                              Case No: 717572.

Petitioners agree to endorse this payment to New York City.

           B.       An amount sufficient to purchase an annuity contract, 1 paid to the life insurance

company2 from which the annuity will be purchased, 3 subject to the conditions described below,

that will provide payments to A.C. as set forth below:

                1. Beginning February 28, 2030, $26,910.87 payable annually for four (4) years
                certain only.

This amount represents all elements of compensation to which A.C. would be entitled under 42

U.S.C. § 300aa-15(a). Petitioners agree. 4 Should A.C. predecease any of the certain payments

1
 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance
companies.
2
  The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any
mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from
two of the following rating organizations:

                    a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;

                    b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;

                    c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or
                    AAA;

                    d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA,
                    AA+, or AAA.
3
  Petitioners authorize the disclosure of certain documents filed by the petitioners in this case consistent with the
Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of
Records, No. 09-15-0056.
4
    At the time payment is received, A.C. will be an adult, and thus guardianship is not required.

                                                            3
set forth above, said payments shall be made to her estate. Written notice to the Secretary of

Health and Human Services and to the Life Insurance Company shall be provided within twenty

(20) days of A.C.’s death.

                                                     Respectfully submitted,

                                                     BENJAMIN C. MIZER
                                                     Principal Deputy Assistant Attorney General

                                                     RUPA BHATTACHARYYA
                                                     Director
                                                     Torts Branch, Civil Division

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

                                                     GLENN MACLEOD
                                                     Senior Trial Counsel
                                                     Torts Branch, Civil Division

                                                     /s/ Adriana Teitel
                                                     ADRIANA TEITEL
                                                     Trial Attorney
                                                     Torts Branch, Civil Division
                                                     U.S. Department of Justice
                                                     P.O. Box 146, Benjamin Franklin Station
                                                     Washington, DC 20044-0146
                                                     Tel: (202) 616-3677


Dated: June 8. 2016




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