    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                         No. 13-1029V
                                      Filed: April 1, 2014
                                      Not for Publication

*************************************
E.J.N., an Infant, by his Mother and        *
Natural Guardian, APRIL NOON,               *
                                            *
               Petitioner,                  *
                                            *                    Damages decision based on proffer;
v.                                          *                    RotaTeq vaccine; intussusception
                                            *                    requiring surgical intervention
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
               Respondent.                  *
                                            *
*************************************
Larry Rosenfeld, Babylon, NY, for petitioner.
Claudia B. Gangi, Washington, DC, for respondent.

MILLMAN, Special Master


                              DECISION AWARDING DAMAGES1

        On December 30, 2013, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10–34 (2006), alleging that E.J.N. suffered intussusception
requiring surgical intervention as a result of receiving RotaTeq vaccine on October 2, 2012. On
March 25, 2014, respondent filed a Vaccine Rule 4(c) Report, conceding that E.J.N. suffered
from intussusception requiring surgical intervention after receipt of RotaTeq vaccine and

1
  Because this decision contains a reasoned explanation for the special master's action in this case, the
special master intends to post this decision on the United States Court of Federal Claims's website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the
public unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document=s disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
                                                    1
recommending that petitioner be awarded compensation.

        On April 1, 2014, respondent filed Respondent’s Proffer on Award of Compensation.
The undersigned finds the terms of the proffer to be reasonable. Based on the record as a whole,
the undersigned finds that petitioner is entitled to the award as stated in the proffer. Pursuant to
the terms stated in the attached proffer, the court awards petitioner a lump sum payment of
$35,000.00, representing compensation for actual and projected pain and suffering. The award
shall be in the form of a check made payable to petitioner, April Noon, as guardian/conservator
of E.J.N.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.2


IT IS SO ORDERED.


Dated: April 1, 2014                                                        /s/ Laura D. Millman
                                                                              Laura D. Millman
                                                                                Special Master




2
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                    2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                         OFFICE OF SPECIAL MASTERS

_________________________________________
                                                       )
E.J.N., an infant by his                               )
mother and natural guardian,                           )
APRIL NOON,                                            )
                                                       )
                       Petitioner,                     )
                                                       )       No. 13-1029V
v.                                                     )       Special Master Millman
                                                       )       ECF
SECRETARY OF HEALTH AND                                )
HUMAN SERVICES,                                        )
                                                       )
                       Respondent.                     )
                                                       )


             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

       On December 30, 2013, petitioner, on behalf of her son, E.J.N., filed a petition for

compensation under the National Childhood Vaccine Injury Act of 1986 (the “Vaccine Act”), as

amended. 42 U.S.C. §§ 300aa-1 et seq. Petitioner alleges that after E.J.N. received RotaTeq

vaccine on October 2, 2012, he suffered from intussusception, requiring a surgical intervention.

The Secretary of Health and Human Services (“respondent”) filed a Vaccine Rule 4(c) report,

conceding that E.J.N. suffered from intussusception requiring surgical intervention after receipt

of RotaTeq vaccine, and recommending that petitioner be awarded compensation. Respondent

hereby submits the following proffer regarding the award of compensation.

I.     Items of Compensation

       A.      Future Medical Care Expenses

       Respondent proffers that based on the evidence of record, petitioner is not entitled to an

award for projected unreimbusable medical care expenses for E.J.N. incurred from the date of
                                                  1
judgment as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(A). Petitioner agrees.

       B.      Lost Future Earnings

       Respondent proffers that based upon the evidence of record, E.J.N. has not, and he is not

likely to suffer a loss of earnings as a result of his vaccine injury. Accordingly, petitioner should

not be awarded lost future earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-

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

       C.      Pain and Suffering

       Respondent proffers that petitioner should be awarded a lump sum of $35,000.00 for

E.J.N.’s 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.

       D.      Past Unreimburseable Expenses

       Respondent proffers that based upon the evidence of record, petitioner has not incurred

any past unreimbursable expenses related to E.J.N.’s vaccine-related injury. Petitioner agrees.

       E.      Medicaid Lien

       Petitioners represent that there are no outstanding Medicaid liens related to E.J.N.’s

vaccine-related injury.

II.    Form of the Award

       The parties recommend that the compensation provided to E.J.N. should

be made through a lump sum payment as described below, and request that the special master’s

decision and the Court’s judgment award the following:

       A.      A lump sum payment of $35,000.00 (representing compensation for actual and

projected pain and suffering), in the form of a check payable to petitioner, April Noon, as
                                                  2
guardian/conservator of E.J.N.

       B.      No payments shall be made until petitioner provides respondent with

documentation establishing that she has been appointed as the guardian/conservator of E.J.N.’s

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

guardian/conservator of the estate of E.J.N., 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 E.J.N. upon submission of written documentation of such appointment to the Secretary.

III.   Summary of Recommended Payment Following Judgment

       A lump sum payment of $35,000.00, representing compensation for actual and projected

pain and suffering, payable to petitioner as the guardian/conservator of E.J.N.’s estate.

                                               Respectfully submitted,

                                               STUART F. DELERY
                                               Assistant Attorney General

                                               RUPA BHATTACHARYYA
                                               Director
                                               Torts Branch, Civil Division

                                               VINCENT J. MATANOSKI
                                               Deputy Director
                                               Torts Branch, Civil Division

                                               GLENN A. MACLEOD
                                               Senior Trial Counsel
                                               Torts Branch, Civil Division




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                       /s/ Claudia B. Gangi
                       CLAUDIA B. GANGI
                       Senior 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) 616-4138


Dated: April 1, 2014




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