Escalera v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: May 2, 2017

* * * * * * * * * * * * * * JENELLE ESCALERA and ARTURO * ESCALERA, on behalf of their minor * child A.E., * No. 14-431V

*

Petitioners, * Special Master Sanders

*

v. *

* Decision on Proffer; Damages; Diphtheria- SECRETARY OF HEALTH * Tetanus-Acellular-Pertussis (“DTaP”) AND HUMAN SERVICES, * Vaccine; Haemophilus Type B (“HiB”)

* Vaccine; Celiac Disease. Respondent. *

* * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner. Christine M. Becer, United States Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING DAMAGES1

On May 20, 2014, Jenelle and Arturo Escalera (“Petitioners”) filed a petition on behalf of their daughter, A.E., pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioners allege that the diphtheria-tetanus-acellular- pertussis (“DTaP”) and haemophilus type B (“HiB”) vaccines administered on May 20, 2011 caused A.E. to suffer from celiac disease. Ruling Entitlement 1, ECF No. 42.

On November 23, 2016, Special Master Hamilton-Fieldman issued a Ruling on Entitlement. Id. She held that Petitioners’ theory and medical records satisfied the three-prong test in Althen v. Secretary of Health and Human Services, 418 F.2d 1274, 1278 (Fed. Cir. 2005), and Petitioners were therefore entitled to compensation. Id. at 18-21.

On November 28, 2016, Special Master Hamilton-Fieldman issued a Damages Order encouraging the parties to identify and provide information “that will be necessary to provide appropriate compensation to Petitioners.” Dam. Order, ECF No. 43. On January 10, 2017, the case was reassigned to the undersigned. Not. Reassignment, ECF No. 46.

On May 2, 2017, Respondent filed a Proffer on Award of Compensation (“Proffer”). Proffer, ECF No. 53. Based on the record as a whole, the undersigned finds that Petitioners are entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the Proffer, attached as Appendix A, the undersigned awards Petitioners:

A. A lump sum payment of $38,106.90, representing compensation for past and future un-reimbursable expenses, in the form of a check payable to [P]etitioners; and

B. A lump sum payment of $9,966.63 representing compensation for a State of

Arizona Medicaid Lien, in the form of a check payable jointly to [P]etitioners and

First Recovery Group Attn: Duncan Burgess 26899 Northwestern Hwy – Suite 250 Southfield, MI 48033

Petitioners agree to endorse this payment to the State of Arizona. C. An amount sufficient to purchase an annuity contract, subject to the conditions described [in Appendix A], that will provide payments as described in section I.C., [of Appendix A], and paid to the life insurance company from which the annuity will be purchased.

Proffer 3.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT herewith.3

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS JENELLE and ARTURO ESCALERA, on behalf of their minor child, A.E.,

Petitioner, No. 14-431V

Special Master Sanders v. ECF SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION Respondent submits the following recommendations regarding items of compensation to be awarded to petitioner under the Vaccine Act.

I. Items of Compensation A. Past Un-reimbursable Expenses Evidence supplied by petitioners documents their expenditure of past un-reimbursable expenses related to A.E.’s vaccine-related injury. Respondent proffers that petitioner should be awarded past un-reimbursable expenses in the amount of $38,106.90. Petitioner agrees.

B. Medicaid Lien Respondent proffers that A.E. should be awarded funds to satisfy the State of Arizona’s Medicaid lien in the amount of $9,966.63, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Arizona may have against any individual as a result of any Medicaid payments the State of Arizona has made to or on behalf of A.E. from the date of her eligibility for benefits through the date of judgment in this case as a result of her vaccine-related injury suffered on or about May 20, 2011, under Title XIX of the Social Security Act. Petitioner agrees.

C. Remaining Compensation for Damages Available under 42 U.S.C. § 300aa-15(a).

Respondent proffers that A.E. should be awarded the following payments: $21,600.00 lump sum paid annually for 5 years starting on January 17, 2028.

The Secretary of Health and Human Services agrees to purchase an annuity contract from the Life Insurance Company for the benefit of A.E., pursuant to which the Life Insurance Company will agree to make the above described lump sum payments to A.E.

Should A.E. predecease the exhaustion of the payments referenced above in this paragraph or be declared incompetent by a court with proper jurisdiction, any remaining payments shall be made to A.E.’s estate. Either petitioner or A.E.’s legal guardian at the time shall provide written notice to the Secretary of Health and Human Services and to the Life Insurance Company within twenty (20) days of A.E.’s death or being declared incompetent. Petitioner agrees. II. Form of the Award

The parties recommend that the compensation provided to A.E. should be made through a combination of one-time lump sum payments and future annuity payments as described in paragraph I.C., above, and request that the Special Master’s decision and the Court’s judgment award the following for all compensation available under 42 U.S.C. § 300aa-15(a).

Respondent proffers and petitioner agrees that an award of compensation include the following elements:

A. A lump sum payment of $38,106.90, representing compensation for past and future un-reimbursable expenses, in the form of a check payable to petitioners; and B. A lump sum payment of $9,966.63, representing compensation for a State of Arizona Medicaid Lien, in the form of a check payable jointly to petitioners and

First Recovery Group Attn: Duncan Burgess

26899 Northwestern Hwy – Suite 250

Southfield, MI 48033

Petitioners agree to endorse this payment to the State of Arizona.

C. An amount sufficient to purchase an annuity contract, 1 subject to the conditions described below, that will provide payments as described in section I.C., above, and paid to the life insurance company 2 from which the annuity will be purchased 3.

III. Summary of Recommended Payments Following Judgment

A. Lump sum paid to petitioner: $38,106.90 B. Lump sum paid to the State of Arizona $ 9,966.63 C. An amount sufficient to purchase the annuity contract described above in section

I.C.

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 LINDA S. RENZI Senior Trial Counsel Torts Branch, Civil Division

Compensation Program System of Records, No.09-15-0056.

/s/ Christine Becer_________________ CHRISTINE BECER Trial Attorney Torts Branch, Civil Division U. S. Department of Justice P.O. Box l46, Benjamin Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-3665

Dated: May 2, 2017 Fax: (202) 616-4310