# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1862V

Filed: November 5, 2018

UNPUBLISHED

B.C., a minor, by and through his

parent and natural guardian,

RACHELLE GUCWA,

Petitioner,

v.

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU);

Damages Decision Based on Proffer;

Rotavirus Vaccine; Intussusception

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey , Chief Special Master:

On December 1, 2017, Rachelle Gu cwa (“petitioner”) filed a petition for

compensation under the National Vaccine Inju ry Compensation Program, 42 U.S.C.

§300aa-10, et seq.

, 2 (the “Vaccine Act”) on behalf of her son, B.C. Petitioner alleges

that B.C. suffered from intussusception as a result of a rotavirus vaccine he received on

July 26, 2016. Petition at 1. The case was assigned to the Special Processing Unit of

the Office of Special Masters.

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.

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 unwar ranted invasion of privacy. If, upon review, the

undersigned agrees that the identified material fits wi thin this definition, the undersigned will redact such

material from public access. Because this unpublished decision contains a reasoned explanation for the

action in this case, undersigned is 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).

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 Ac t will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012).2 On June 13, 2018, a ruling on entitlement was issued, finding petitioner entitled

to compensation. On November 2, 2018, respondent filed a proffer on award of

compensation (“Proffer”) re commending that the undersigned award the following: an

amount sufficient to purchase an annuity cont ract, paid to the life insurance company

from which the annuity will be pur chased, subject to the conditions described in the

attached proffer, that will provide a certai n lump sum payment to B.C. as follows:

$87,504.36 payable in a certain lump sum on May 23, 2034. Proffer at 2. In the Proffer,

respondent represented that petit ioner agrees with the proffe red award. Based on the

record as a whole, the undersigned finds that petitioner is entitled to an award as stated

in the Proffer. Id.

Pursuant to the terms stat ed in the attached Proffer, the undersigned awards

an amount sufficient to purchase an annuity contract, paid to the life insurance

company from which the annuity will be purchased, subject to the conditions

described in the attached proffer that wi ll provide a certain lump sum payment to

B.C. as set forth below:

$87,504.36 payable in a certain lump sum on May 23, 2034.

This amount represents compensation fo r all damages that would be available

under § 15(a). The clerk of the court is directed to enter judgment in accordance with

this decision. 3

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment c an be expedited by the parties’ joint filing of notice

renouncing the right to seek review.1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

__________________________________________ )

B.C., a minor, by and through his )

parent and natural guardian, )

RACHELLE GUCWA, )

) No. 17

- 1862 V

Petitioner, ) Chief Special Master

) Nora Beth Dorsey

v. ) ECF

)

SECRETARY OF HEALTH AND )

HUMAN SERVICES, )

)

__________________________________________ )

RESPONDENT’S PROFFER OF DAMAGES

On June 13, 2018, respondent filed a Rule 4(c) Report conceding petitioner’s entitlement

to compensation for B.C.’s intussusception allegedly sustained as a result of a rotavirus vaccine

administered on July 26, 2016. On Jun e 13, 2018, the Chief Special M aster issued a Ruling on

Entitlement finding petitioner entitled to damages in this case. Respondent now proffers tha t

B.C. receive compensation for damages as outlined below

.

I. Item s of Compensation and Form of the Award

Based upon the evidence of re cord, respondent proffers , and the parties recommend, that

compensation be made through future annuity payment s as described below, and request that the

C hief S pecial M aster's decision and the Court's judgment award the following: 1

1 Should B.C. die prior to entry of judgment, the parties reserve the right to move the

Court for appropriate relief. In particular, respondent would oppose any award for future

medical expenses, future lost earnings, and future pain and suffering.2 A

. Annuity

An amount sufficient to purchase an annuity contract, 2 paid to the life insurance

company 3 from which the annuity will be purchased, 4 subject to the conditions described below,

that will provide a certain lump sum payment to B.C. as set forth below:

$ 87 ,504.36 payable in a certain lump sum on May 23, 2034

.

Should B.C. predecease the certain lump sum payment set forth above, said payment

shall be made to his estate. Written notice to the Secretary of Health and Human Services and to

the Life Insurance C ompany shall be provided within twenty (20) days of B.C. ’s death.

This amount represents all elements of compensation to which B.C. would be entitled

under 42 U.S.C. § 300aa

- 15(a). P etitioner agree s

. 5

2 In respondent’s discretion, respondent may purchase one or more annuity contracts

from one or more life insurance companies.

3 The Life Insurance Company must have a minimum of $250,000,000 capital and

surplus, exclusive of any mandatory security valuat ion 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.

4 Petitioner authorize s the disclosure of cert ain documents filed by the petitioner 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.

5 At the time payment is received, B.C. will be an adult, and thus guardianship is not

required.3 II. Summary of Recommended Payments Following Judgment

A

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

I. A

.

Petitioner agrees with the proffered award as representing all elements of compensation

under 4 2 U.S.C. § 300aa

- 15(a) to which B.C. is entitled.

Respectfully submitted,

JOS E P H H. HUNT

Assistant Attorney General

C. SALVATORE D’ALESSIO

Acting Director

Torts Branch, Civil Division

CATHARINE E. REEVES

Deputy Director

Torts Branch, Civil Division

GABRIELLE M. FIELDING

Assistant Director

Torts Branch, Civil Division

s/ Camille M. Collett

CAMILLE M. COLLETT

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

- 4098

Dated: November 2, 2018