        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                       Filed: May 2, 2017

* * * * * * * * * * * * * *
JENELLE ESCALERA and ARTURO                      *
ESCALERA, on behalf of their minor               *
child A.E.,                                      *        No. 14-431V
                                                 *
                        Petitioners,             *        Special Master Sanders
                                                 *
v.                                               *
                                                 *        Decision on Proffer; Damages; Diphtheria-
SECRETARY OF HEALTH                              *        Tetanus-Acellular-Pertussis (“DTaP”)
AND HUMAN SERVICES,                              *        Vaccine; Haemophilus Type B (“HiB”)
                                                 *        Vaccine; Celiac Disease.
                     Respondent.                 *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Christine M. Becer, United States Department of Justice, Washington, DC, for Respondent.

                              DECISION AWARDING DAMAGES1

        On May 20, 2014, Jenelle and Arturo Escalera (“Petitioners”) filed a petition on behalf of
their daughter, A.E., pursuant to the National Vaccine Injury Compensation Program.2 42
U.S.C. §§ 300aa-10 to -34 (2012). Petitioners allege that the diphtheria-tetanus-acellular-
pertussis (“DTaP”) and haemophilus type B (“HiB”) vaccines administered on May 20, 2011
caused A.E. to suffer from celiac disease. Ruling Entitlement 1, ECF No. 42.

         On November 23, 2016, Special Master Hamilton-Fieldman issued a Ruling on
Entitlement. Id. She held that Petitioners’ theory and medical records satisfied the three-prong
test in Althen v. Secretary of Health and Human Services, 418 F.2d 1274, 1278 (Fed. Cir. 2005),
and Petitioners were therefore entitled to compensation. Id. at 18-21.



1
  This decision shall be posted 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), a party has 14 days to identify
and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further,
consistent with the rule requirement, a motion for redaction must include a proposed redacted decision.
If, upon review, the undersigned agrees that the identified material fits within the requirements of that
provision, such material will be deleted from public access.
2
 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-
660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2012) [hereinafter “Vaccine
Act” or “the Act”]. Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.
       On November 28, 2016, Special Master Hamilton-Fieldman issued a Damages Order
encouraging the parties to identify and provide information “that will be necessary to provide
appropriate compensation to Petitioners.” Dam. Order, ECF No. 43. On January 10, 2017, the
case was reassigned to the undersigned. Not. Reassignment, ECF No. 46.

        On May 2, 2017, Respondent filed a Proffer on Award of Compensation (“Proffer”).
Proffer, ECF No. 53. Based on the record as a whole, the undersigned finds that Petitioners are
entitled to an award as stated in the Proffer.

       Pursuant to the terms stated in the Proffer, attached as Appendix A, the undersigned
awards Petitioners:

        A. A lump sum payment of $38,106.90, representing compensation for past and
           future un-reimbursable expenses, in the form of a check payable to [P]etitioners;
           and

        B. A lump sum payment of $9,966.63 representing compensation for a State of
           Arizona Medicaid Lien, in the form of a check payable jointly to [P]etitioners
           and

                                       First Recovery Group
                                       Attn: Duncan Burgess
                                26899 Northwestern Hwy – Suite 250
                                       Southfield, MI 48033

             Petitioners agree to endorse this payment to the State of Arizona.

        C. An amount sufficient to purchase an annuity contract, subject to the conditions
           described [in Appendix A], that will provide payments as described in section
           I.C., [of Appendix A], and paid to the life insurance company from which the
           annuity will be purchased.

Proffer 3.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT herewith.3

        IT IS SO ORDERED.

                                                  s/Herbrina D. Sanders
                                                  Herbrina D. Sanders
                                                  Special Master

3
  Pursuant to Vaccine Rule 11(a), entry of judgment is 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


 JENELLE and ARTURO ESCALERA,
 on behalf of their minor child, A.E.,


                Petitioner,                            No. 14-431V
                                                       Special Master Sanders
 v.                                                    ECF

 SECRETARY OF HEALTH AND
 HUMAN SERVICES,

                Respondent.

             RESPONDENT’S PROFFER ON AWARD OF COMPENSATION


Respondent submits the following recommendations regarding items of compensation to be

awarded to petitioner under the Vaccine Act.


       I.      Items of Compensation


       A.      Past Un-reimbursable Expenses


       Evidence supplied by petitioners documents their expenditure of past un-reimbursable

expenses related to A.E.’s vaccine-related injury. Respondent proffers that petitioner should be

awarded past un-reimbursable expenses in the amount of $38,106.90. Petitioner agrees.


       B.      Medicaid Lien


        Respondent proffers that A.E. should be awarded funds to satisfy the State of Arizona’s

Medicaid lien in the amount of $9,966.63, which represents full satisfaction of any right of

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

any individual as a result of any Medicaid payments the State of Arizona has made to or on
behalf of A.E. 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 May 20, 2011, under Title XIX

of the Social Security Act. Petitioner agrees.


       C.      Remaining Compensation for Damages Available under 42 U.S.C. §

       300aa-15(a).


        Respondent proffers that A.E. should be awarded the following payments:


        $21,600.00 lump sum paid annually for 5 years starting on January 17, 2028.


The Secretary of Health and Human Services agrees to purchase an annuity contract from the

Life Insurance Company for the benefit of A.E., pursuant to which the Life Insurance Company

will agree to make the above described lump sum payments to A.E.


Should A.E. predecease the exhaustion of the payments referenced above in this paragraph or be

declared incompetent by a court with proper jurisdiction, any remaining payments shall be made

to A.E.’s estate. Either petitioner or A.E.’s legal guardian at the time shall provide written notice

to the Secretary of Health and Human Services and to the Life Insurance Company within twenty

(20) days of A.E.’s death or being declared incompetent. Petitioner agrees.


II.    Form of the Award


       The parties recommend that the compensation provided to A.E. should be made through a

combination of one-time lump sum payments and future annuity payments as described in

paragraph I.C., above, and request that the Special Master’s decision and the Court’s judgment

award the following for all compensation available under 42 U.S.C. § 300aa-15(a).




                                                  2
        Respondent proffers and petitioner agrees that an award of compensation include the

following elements:


        A.      A lump sum payment of $38,106.90, representing compensation for past and

        future un-reimbursable expenses, in the form of a check payable to petitioners; and

        B.      A lump sum payment of $9,966.63, representing compensation for a State of

        Arizona Medicaid Lien, in the form of a check payable jointly to petitioners and

                                        First Recovery Group
                                        Attn: Duncan Burgess
                                 26899 Northwestern Hwy – Suite 250
                                        Southfield, MI 48033

        Petitioners agree to endorse this payment to the State of Arizona.

        C. An amount sufficient to purchase an annuity contract, 1 subject to the conditions

        described below, that will provide payments as described in section I.C., above, and paid

        to the life insurance company 2 from which the annuity will be purchased 3.



        1
         To satisfy the conditions set forth herein, 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
          Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case
consistent with the Privacy Act and the routine uses described in the National Vaccine Injury


                                                      3
III.   Summary of Recommended Payments Following Judgment


       A.     Lump sum paid to petitioner:                                  $38,106.90


       B.     Lump sum paid to the State of Arizona                         $ 9,966.63


       C.     An amount sufficient to purchase the annuity contract described above in section

              I.C.



                                             Respectfully submitted,

                                             CHAD A. READLER
                                             Acting Assistant Attorney General

                                             C. SALVATORE D’ALESSIO
                                             Acting Director
                                             Torts Branch, Civil Division

                                             CATHARINE E. REEVES
                                             Deputy Director
                                             Torts Branch, Civil Division

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




Compensation Program System of Records, No.09-15-0056.



                                                4
                     /s/ Christine Becer_________________
                     CHRISTINE BECER
                     Trial Attorney
                     Torts Branch, Civil Division
                     U. S. Department of Justice
                     P.O. Box l46, Benjamin Franklin Station
                     Washington, D.C. 20044-0146
                     Direct dial: (202) 616-3665
Dated: May 2, 2017   Fax: (202) 616-4310




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