In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 15-631V

Filed: October 31, 2016

UNPUBLISHED

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

DANIEL NEIMAN and ALLYSON F., *

NEIMAN, as parents and legal *

Representatives of their minor son *

N.K.N. *

*

Petitioners, * Decision Awarding Damages;

v. * Rotavirus;

* Intussusception; 

SECRETARY OF HEALTH * Special Processing Unit (“SPU”)

AND HUMAN SERVICES, *

*

Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Elizabeth Martin Muldowney, Rawls, McNelis and Mitchell, P.C., Richmond, VA, for 

petitioners.

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

DECISION AWARDING DAMAGES1

On June 19, 2015, petitioners filed a petition for compensation under the National 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,

2 (the “Vaccine 

Act”). Petitioners alleged that following administration of a number of vaccinations, 

including rotavirus vaccine, N.K.N. developed severe intussusception requiring surgical 

intervention. Petition at 1. The case was assigned to the Special Processing Unit of the 

Office of Special Masters.

 1 Because this 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 EGovernment 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 Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012).
On June 9, 2016, a Ruling on Entitlement was issued finding petitioners entitled 

to compensation based on respondent’s concession. (ECF No. 26.) On August 22, 

2016, the undersigned issued a ruling on pain and suffering finding that petitioners are 

entitled to $144,000.00 for N.K.N.’s past pain and suffering and $1,000.00 per year over 

a 74 year life expectancy for his future pain and suffering, as well as $5,992.21 in past 

unreimbursable medical expenses. (ECF No. 34, p. 9.) The undersigned ordered the 

parties to file a joint status report converting the award for future pain and suffering to a 

net present value. (Id.)

On September 19, 2016, the parties advised that they are unable to agree on a 

net present value (ECF No. 35) and on September 30, 2016, submitted briefs regarding 

their respective views on the appropriate reduction to net present value (ECF Nos. 37-

38). Respondent proposes to apply a net discount rate of 2% for all years. (ECF No. 

38.) This results in a net present value of $39,219.67. (Id.) Petitioners, however, wish

to apply a net discount rate of 1% for the next 15 years followed by a net discount rate 

of 2% applied for the remaining 59 years. (ECF No. 37, p. 1.) This results in a net 

present value of $40,235.10. (Id.) Citing the current 10, 20 and 30 year treasury rates, 

petitioners argue that applying a lower net discount rate in the near term is appropriate 

due to historically low interest rates. (ECF No. 37, p. 3.) Respondent does not address

petitioners’ contention, but argues that the 2% rate has been consistently used by 

respondent and routinely accepted by petitioners in the Vaccine Program and that these 

petitioners should be treated similarly.3 (ECF No. 38, p. 3.)

Although the undersigned is sympathetic to respondent’s argument in favor of 

consistency, it would be unjust to hold these petitioners to prior petitioners’ agreements 

for expediency alone. Petitioners’ representations regarding current interest rates are 

unrebutted and their proposed reduction is within the bounds of what has been applied 

in prior cases where the reduction to net present value was contested.4 Therefore, 

consistent with petitioners’ approach, the undersigned concludes that the net present 

value of petitioners’ award for future pain and suffering is $40,235.10.5

 3 Respondent stresses in particular that a 2% net discount rate was applied in the Brooks case, which the 

undersigned characterized as “factually indistinguishable” from the instant case and upon which the 

instant award was modeled. (ECF No. 38, p. 3.) Significantly, however, the discount rate applied in 

Brooks was determined by agreement of the parties.

4 See, e.g. Childers v. HHS, No. 96-196V, 1999 WL 159844 (Fed. Cl. Spec. Mstr. Mar. 5, 1999)(noting 

that the Supreme Court has approved the use of net discount rates of between 1-3%, but applying the 1% 

in light of legislative history suggesting that the Vaccine Program was intended to compensate with 

generosity); Watkins v. HHS, No. 88-66V, 1990 WL 608695 (Fed. Cl. Spec. Mstr. May 10, 1990)(finding 

an economist’s use of a 1% net discount value to be reasonable); see also Jones and Laughlin Steel 

Corp. v. Pfeifer, 462 U.S. 523 (1983)(approving discount rates of between 1-3% in the context of future 

lost earnings).

5 The undersigned stresses that this is not a finding that respondent’s proposed discount rate of 2% is 

unreasonable. See, e.g. Watkins v. HHS, No. 95-154V, 1999 WL 199057 (Fed. Cl. Spec. Mstr. Mar. 12, 

1999)(applying a 2% net discount rate in the context of future lost earnings).
Based on the record as a whole, and pursuant to the undersigned’s Ruling on 

Pain and Suffering, the undersigned finds that petitioners are entitle to an award as 

follows:

A lump sum of $190,277.31 which represents compensation for actual pain 

and suffering ($144,000.00), projected pain and suffering ($40,235.10), and 

past unreimbursed medical expenses ($5,992.21), in the form of a check 

payable to petitioners as guardians/conservators of N.K.N.’s estate. 

This amount represents compensation for all items of damages that would be 

available under 42 U.S.C. § 300aa-15(a). Id. 

In the absence of a motion for review filed pursuant to RCFC Appendix B, the 

clerk of the court is directed to enter judgment in accordance with this decision.6

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

 6 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.