# 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No. 16 -1716V Filed: August 6, 2018 UNPUBLISHED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

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Damages Decision Based on Proffer; Rotavirus Vaccine; Intussusception

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

DECISION AWARDING DAMAGES 1

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 vaccin e 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 intus sus cepti on in ju ry . On August 3, 2018

, respondent filed a proffer on a ward 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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.

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 Va ccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

3 E.K.’s vaccination record lists an administration date of October 29, 2015. See, e.g.

, Petitioner’s Exhibit (“Pet. Ex.”) 5 at 2, 17.2

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.1 IN THE UNITED STATES CO URT 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, Chie f Special Master Dorsey issued a Ruling on

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

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

Table. E.K.’s intussusception manifested betwee n 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 th e vaccine. Moreover, E.K.’s intussusception

“resulted in inpatient hospitalizatio n and surgical intervention.” See 42 U.S.C. § 300aa11(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 suffe ring. This amount represents all elements

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

agrees.2 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 pa in 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 th e estate of E.K., any

such payment shall be made to the party or part ies appointed by a court of competent jurisdiction

to serve as guardian/conservato r of the estate of E.K. upon su bmission 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.3 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