# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 0759 V UNPUBLISHED

SARAH FLORES and RYAN C. FLORES, on behalf of M.F., a Minor Child

,

Petitioner s , v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: May 11, 2021

Special Processing Unit (SPU); Damages Decision Based on Proffer; Measles Mumps Rubella (MMR) Vaccine; Thrombocytopenic Purpura (ITP)

Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL , for P etitioner.

Kyle Edward Pozza , U.S. Department of Justice, Washington, DC, for R espondent.

DECISION AWARDING DAMAGES 1

On May 30, 2018

, Sarah and Ryan C. Flores 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, M.F . Petitioner s allege that following the June 23, 2016 administration of a measles, mumps and rubella (“MMR”) vaccine, M.F. experienced immune thrombocytopenic purpura (“ITP”)

. See generally Petition

. The case was assigned to the Special Processing Unit of the Office of Special Mas ters.

On February 1, 2021

, a ruling on entitlement was issued , finding P etitioner s entitled to compensation for ITP . On May 7, 2021

, R espondent filed a p roffer on a ward of

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means the decision will be available to anyone with access to the internet. 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).2

compensation (“Proffer”) indicating P etitioner s should be awarded a lump sum payment of $ 1,844.13 for past unreimbursable expenses as well as an amount not to exceed $40,000.00 , for actual pain and suffering, to purchase an annuity contract pursuant to the terms set forth in the Proffer

. Proffer at 3

- 4

. In the Proffer, R espondent represented that Petitioners agree with the proffered award. Id. Based on the record as a whole, I find that P etitioner s are entitled to an award as stated in the Proffer.

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

A. A lump sum payment of $1,844.13 representing compensation for past unreimbursable expenses, in the form of a check payable to P etitioners.

B. An amount not to exceed $40,000.00 , representing compensation for actual pain and suffering, to purchase an annuity contract paid to the life insurance company (the “Life Insurance Company”) from which the annuity will be purchased. The Life Insurance Company will agree to make lump sum payments to M.F. for all elements of compensation which M.F. would be entitled under Section 15(a) as follows:

1. A certain lump sum of $13,061.14 payable on April 15, 2033. 2. A certain lump sum of $21,575.90 payable on April 15, 2036. 3. A certai n lump sum of $22,822.02 payable on April 15, 2038.

The purchase price of the annuity shall neither be greater nor less than $40,000.00. In the event that the cost of the certain lump sum annuity payments set forth above varies from $40,000.00, the lump sum payment due on April 15, 2038, listed above, shall be adjusted to ensure that the total cost of the annuity is neither less than nor greater than $40,000.00. Should M.F. predecease the payment of any certain lump sums set forth above, any remaining certain lump sum payments shall be made to her estate. Ho wever, written notice to the Secretary of Health and Human Services and the Life Insurance Company shall be provided within twenty (20) days of M.F.’s death.

This amount represents compensation for all damages that would be available under Section 15(a)

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

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renounci ng the right to seek review.3

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master1 

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

__________________________________ __ ) SARAH FLORES and RYAN C. FLORES, ) on behalf of M.F., a minor child, ) No. 18

- 759V ) Chief Special Master Corcoran Petitioner s , ) ECF )

v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) )

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On May 30, 2018, Sarah Flores and Ryan C. Flores (“petitioners”), on behalf of M.F., a

minor, filed a petition for compensation under the National Childhood Vaccine Injury Act of

1986, 42 U.S.C. § 300aa -1 et seq. (“the Vaccine Act”). The petition alleges that M.F. received

the measles, mumps, rubella (“MMR”) vaccine on June 23, 2016, and thereafter suffered

idiopathic thrombocytopenic purpura (“ITP”). On January 19, 2021, the Secretary of Health and

Hum an Services (“respondent”) filed an Amended Rule 4(c) Report advising that, in light of

Chief Special Master Corcoran’s Findings of Fact and Conclusions of L aw, respondent did not

dispute that petitioner s had satisfied all legal prerequisites for compensation under the Vaccine

Act . ECF No. 58

. On February 1, 2021, Chief Special Master Corcoran issued a Ruling on

Entitlement, finding that petitioner s were entitled to vaccine compensation. 1 ECF No. 59.

1 Respondent has no objection to the amount of the proffered award of damages set forth herein. Assuming the Chief S pecial M aster issues a damages decision in conformity with this proffer, respondent waive s his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa

- 12(e), to seek review of the Chief Special
Master’s October 26 , 2020

, Findings of Fact and Conclusion of Law and February 1, 2021, entitlement decision

.2 I. Items of Compensation

A. Future Unreimbursable Expenses

The parties agree that based upon the evidence of record, M.F . will not require future

medical or rehabilitative care for her vaccine

- related injury. Therefore, respondent proffers that

petitioners should not be awarded fut ure unreimbursable expenses on M.F. ’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, M.F. 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 M.F .’s behalf under 42 U.S.C.

§ 300aa

- 15(a)(3)(B). Petitioners agree.

C. Pain and Suffer ing

Respondent proffers that M.F . should be awarded compensation for a ctual 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. The parties agree that it is

unlikely that M.F .’s vaccine

- related injury will cause her pain and suffering in the future.

Petitioners agree.

D. Past Unreimbursable Expenses

The parties agree that based upon the evidence of record, petitioners incurred past

unreimbursable expenses of $1,844.13 as a result of M.F.’s vaccine

- related injury. Therefore,

responden t proffers that petitioners should be awarded past unreimbursable expenses on M.F.’s

behalf under 42 U.S.C. § 300aa

- 15(a)(1)(B). Such compensation shall be in the form as set forth

in section II.A. below. Petitioners agree.3 E. Medicaid Lien

The parties agree that there is no Medicaid Lien.

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:

A. A lump sum payment of $1,844.13 representing compensation for past

unreimbursable expenses, in the form of a check payable to petitioners.

B. An amount not to exceed $40,000.00 to purchase an annuity contract, 2 paid to the

life insurance company 3 from which the annuity will be purchased (the "Life Insurance

Company"). 4 The Life Insurance Company will agree to make lump sum payments to M.F. for

all elements of compensation to which M.F. would be entitled under 42 U.S.C. § 300aa

- 15(a)

§300aa

- 15(a), as follows:

2 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.

3 The Life Insura nce 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 Co mpany: 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.

4 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 1. A certain lump sum of $13,061.14 payable on April 15, 2033.

2. A certain lump sum of $21,575.90 payable on April 15, 2036.

3. A certa in lump sum of $22,822.02 payable on April 15, 2038.

The purchase price of the annuity described in this section II.B shall neither be greater nor

less than $40,000.00. In the event that the cost of the certain lump sum annuity payments set forth

above varies from $40,000.00, the lump sum payment due on April 15, 2038 , listed above

, shall

be adjusted to ensure that the total cost of the annuity is neither less than nor greater than

$4 0,000.00. Should M.F. predecease the payment of the any certain lump sum s set forth above,

any remaining certain lump sum payment s shall be made to her estate. However, written notice to

the Secretary of Health and Human Services and the Life Insurance Company shall be provided

within twenty (20) days of M.F. ’s death. Petiti oners agree. 5

5 At the time payment is received, M.F . will be an adult, and thus guardianship is not required.5 Respectfully submitted,

BRIAN M. BOYNTON Acting Assistant Attorney General

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

HEATHER L. PEARLMAN Acting Deputy Director Torts Branch, Civil Division

/s/ Kyle E. Pozza

_____________ KYLE E. POZZA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044

- 0146 Phone: (202) 616

- 3661 Fax: (202) 353

- 2988 Kyle.Pozza@usdoj.gov Dated: May 7 , 2021