         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-1716V
                                     Filed: August 6, 2018
                                        UNPUBLISHED


    JEANETTE KUHL, on behalf of
    E.K., minor vacinee,                                     Special Processing Unit (SPU);
                                                             Damages Decision Based on Proffer;
                        Petitioner,                          Rotavirus Vaccine; Intussusception
    v.

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Terry Allen Dawes, McKeen & Associates, Detroit, MI, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

                               DECISION AWARDING DAMAGES1

Dorsey, Chief Special Master:

      On December 29, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that that E.K.’s receipt of a rotavirus vaccine on or
about October 28, 2015, caused him to suffer intussusception.3 Petition at 1-2. The
case was assigned to the Special Processing Unit of the Office of Special Masters.

        On September 19, 2017, a ruling on entitlement was issued, finding petitioner
entitled to compensation for E.K.’s intussusception injury. On August 3, 2018,
respondent filed a proffer on award of compensation (“Proffer”) indicating petitioner

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
3E.K.’s vaccination record lists an administration date of October 29, 2015. See, e.g.,
Petitioner’s Exhibit (“Pet. Ex.”) 5 at 2, 17.
should be awarded $50,000.00. Proffer at 2. In the Proffer, respondent represented
that petitioner agrees with the proffered award. Based on the record as a whole, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer.


       Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $50,000.00 in the form of a check payable to
petitioner, Jeanette Kuhl, as guardian/conservator of E.K. This amount represents
compensation for all damages that would be available under § 300aa-15(a).

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

                                              )
JEANETTE KUHL, on behalf of E.K.,             )
a Minor,                                      )
                                              )
                 Petitioner,                  )
                                              )       No. 16-1716V (ECF)
v.                                            )       Chief Special Master Dorsey
                                              )
SECRETARY OF HEALTH AND                       )
HUMAN SERVICES,                               )
                                              )
                 Respondent.                  )
                                              )

               RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

I.        Compensation for Vaccine Injury-Related Items

          On September 19, 2017, respondent filed his Rule 4(c) Report conceding entitlement in

the above-captioned case. That same day, Chief Special Master Dorsey issued a Ruling on

Entitlement finding that petitioner was entitled to a presumption of causation. Specifically,

petitioner’s son, E.K., suffered from intussusception that met the criteria of the Vaccine Injury

Table. E.K.’s intussusception manifested between one and twenty-one days after his receipt of

the second dose of the rotavirus vaccine, and there is not preponderant evidence that his

condition was due to a factor unrelated to the vaccine. Moreover, E.K.’s intussusception

“resulted in inpatient hospitalization and surgical intervention.” See 42 U.S.C. § 300aa-

11(c)(1)(D)(iii).

          Based on the evidence of record, respondent proffers that E.K. should be awarded

$50,000.00, which is based entirely on pain and suffering. This amount represents all elements

of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner

agrees.

                                                  1
II.    Form of the Award

       Respondent recommends that the compensation provided to petitioner be made through a

lump sum payment of $50,000.00, representing compensation for pain and suffering, in the form

of a check payable to petitioner as guardian/conservator of E.K., for the benefit of E.K. No

payment shall be made until petitioner provides respondent with documentation establishing that

she has been appointed as guardian/conservator of E.K.’s estate. If petitioner is not authorized

by a court of competent jurisdiction to serve as guardian/conservator of the estate of E.K., 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.K. upon submission of written documentation

of such appointment to the Secretary.1 Petitioner agrees.


                                                     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

                                                     ALEXIS B. BABCOCK
                                                     Assistant Director
                                                     Torts Branch, Civil Division




1
       Should E.K. die prior to the entry of judgment, respondent reserves the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future
medical expenses, future pain and suffering, and future lost wages.
                                                2
                              s/Amy P. Kokot
                              AMY P. KOKOT
                              Trial Attorney
                              Torts Branch, Civil Division
                              U.S. Department of Justice
                              P.O. Box 146
                              Ben Franklin Station
                              Washington, DC 20044-0146
                              Tel: (202) 616-4118

Dated:   August 3, 2018




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