           In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 14-1065V
                                      Filed: August 12, 2015
                                        Not for Publication

*************************
MIRANDA WERNER, on behalf of                       *
P.M.S., a minor child,                             *
                                                   *
                         Petitioner,               *       Damages Decision Based on Proffer;
                                                   *       Rotavirus Vaccine; Intussusception;
v.                                                 *       Special Processing Unit (“SPU”)
                                                   *
                                                   *
SECRETARY OF HEALTH                                *
AND HUMAN SERVICES,                                *
                                                   *
             Respondent.                           *
*************************

Anne Toale, Esq., Maglio Christopher and Toale, PA, Sarasota, FL, for petitioner.
Ryan Pyles, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                                DECISION AWARDING DAMAGES1

Vowell, Chief Special Master:

       On October 31, 2014, Miranda Werner 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 minor child, P.M.S. The petition alleges
that as a result of a rotavirus, polio, pneumococcal, haemophilus influenza b [“HIB”],
and/or diphtheria-tetanus-acellular pertussis [“DTaP”] vaccinations on May 17, 2013,
P.M.S. suffered an intussusception and recurrence thereof. Petition at 1-2. The case
was assigned to the Special Processing Unit of the Office of Special Masters.



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  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend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.
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).
       On January 28, 2015, I issued a ruling on entitlement, finding petitioner entitled to
compensation for P.M.S.’s intussusception. On August 10, 2015, respondent filed a
proffer on award of compensation [“Proffer”] indicating that petitioner should be awarded
compensation as detailed below.

      Pursuant to the terms stated in the attached Proffer, I award compensation as
follows:

       (1) An amount sufficient to purchase an annuity contract for the benefit of
       P.M.S., paid to the life insurance company from which the annuity will be
       purchased (the “Life Insurance Company”),3 pursuant to which the Life
       Insurance Company will agree to make payments to P.M.S. as follows:

               a. A certain lump sum of $14,526.50 payable on January 15, 2031;
               b. A certain lump sum of $14,526.50 payable on January 15, 2032;
               c. A certain lump sum of $14,526.50 payable on January 15, 2033;
                  and
               d. A certain lump sum of $14,526.50 payable on January 15, 2034.

       Should P.M.S. predecease the exhaustion of the payments referenced
       above or be declared incompetent by a court with proper jurisdiction, any
       remaining payments shall be made to the Estate of P.M.S.; and

       (2) A lump sum of $10,221.19, which amount represents reimbursement of
       a State of Kentucky Medicaid lien, in the form of a check payable jointly to
       petitioner and

                                   Xerox Recovery Services
                                      Case ID: 19059948
                                        P.O. Box 4003
                                  Schaumburg, IL 60168-4003.

       Petitioner shall endorse this payment to Xerox Recovery Services, on behalf of
       the State.

Proffer at 1-2. This amount represents compensation for all damages that would be
available under § 300aa-15(a).

3
  Respondent shall have sole discretion to select the Life Insurance Company, subject to the
condition that 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.

                                                   2
       The clerk of the court is directed to enter judgment in accordance with this
decision.4

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




4
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.


                                                    3
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS


MIRANDA WERNER, on behalf of P.M.S., a
minor child,

                      Petitioner,
                                                     No. 14-1065V
v.                                                   Chief Special Master Denise K. Vowell
                                                     ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,

                      Respondent.


            RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On January 26, 2015, respondent filed her Rule 4(c) Report, in which she recommended

that the Court find petitioner entitled to compensation. On January 28, 2015, the Court ruled in

favor of entitlement. The parties recommend that the compensation provided to P.M.S. should

be made through future annuity payments as described below, and the parties request that the

Chief Special Master’s decision and the Court’s judgment award the following for all

compensation available under 42 U.S.C. § 300aa-15(a):

       (1) An amount sufficient to purchase an annuity contract for the benefit of
       P.M.S., paid to the life insurance company from which the annuity will be
       purchased (the “Life Insurance Company”),1 pursuant to which the Life Insurance
       Company will agree to make payments to P.M.S. as follows:


1
  Respondent shall have sole discretion to select the Life Insurance Company, subject to the
condition that 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;



                                                1
                a.   A certain lump sum of $14,526.50 payable on January 15, 2031;
                b.   A certain lump sum of $14,526.50 payable on January 15, 2032;
                c.   A certain lump sum of $14,526.50 payable on January 15, 2033; and
                d.   A certain lump sum of $14,526.50 payable on January 15, 2034.

         Should P.M.S. predecease the exhaustion of the payments referenced above or be
         declared incompetent by a court with proper jurisdiction, any remaining payments
         shall be made to the Estate of P.M.S.; and

         (2) A lump sum of $10,221.19, which amount represents reimbursement of a
         State of Kentucky Medicaid lien, in the form of a check payable jointly to
         petitioner and

                                      Xerox Recovery Services
                                        Case ID: 19059948
                                          P.O. Box 4003
                                    Schaumburg, IL 60168-4003.

         Petitioner shall endorse this payment to Xerox Recovery Services, on behalf of
         the State.

                                                  ***

         This proffer does not address final attorneys’ fees and litigation costs. Petitioner is

additionally entitled to reasonable attorneys’ fees and litigation costs, to be determined at a later

date upon petitioner submitting substantiating documentation.

         Petitioner advised respondent that she agrees with the proffered award as described

above.

                                                        Respectfully submitted,

                                                        BENJAMIN C. MIZER
                                                        Principal Deputy Assistant Attorney General




         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.


                                                   2
                             RUPA BHATTACHARYYA
                             Director
                             Torts Branch, Civil Division

                             VINCENT J. MATANOSKI
                             Deputy Director
                             Torts Branch, Civil Division

                             CATHARINE E. REEVES
                             Assistant Director
                             Torts Branch, Civil Division

                             s/ RYAN D. PYLES
                             RYAN D. PYLES
                             Trial Attorney
                             Torts Branch, Civil Division
                             U.S. Department of Justice
                             P.O. Box 146
                             Benjamin Franklin Station
                             Washington, DC 20044-0146
                             Tel: (202) 616-9847

Dated: August 10, 2015




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