A.S. v. HHS - MMR, acute encephalopathy and/or encephalitis and the onset of chronic encephalopathy/seizure disorder (2014)

On October 26, 2012, Philip and Pamela Sapienza filed a petition seeking compensation on behalf of their daughter, A.S., who received the measles, mumps, and rubella (MMR) vaccine on January 15, 2010. The petition alleged that A.S. suffered acute encephalopathy and/or encephalitis and the onset of chronic encephalopathy and seizure disorder following the MMR vaccine.

Alternatively, the petition alleged that a combination of the MMR, diphtheria-tetanus-acellular pertussis (DTaP), varicella, and polio vaccines administered on the same day caused her ongoing condition. The respondent conceded entitlement to compensation in a Rule 4(c) report filed January 24, 2013.

The report stated that A.S. suffered encephalopathy within five to fifteen days after receiving the MMR vaccine, satisfying the Vaccine Injury Table definition, and that the record did not show by a preponderance of the evidence that her encephalopathy was due to factors unrelated to the MMR vaccine. Chief Special Master Denise K.

Vowell issued a ruling on entitlement on January 29, 2013, and the case proceeded to the damages phase. The public damages decision did not detail a specific treatment chronology or expert dispute, as entitlement had been conceded.

On March 27, 2014, the respondent filed a proffer on the award of compensation. Petitioners agreed to each aspect of the proposed award.

The life-care component was developed with input from respondent's life care planner, Laura Fox, MSN, RN, CNLCP, and petitioners' expert, William H. Burke, Ph.D.

The parties also agreed that A.S. would not be gainfully employed in the future and that there were no outstanding Medicaid liens. On March 28, 2014, Chief Special Master Vowell awarded damages.

The award included a lump sum payment of $993,374.96 payable to petitioners as guardians or conservators of A.S.'s estate for A.S.'s benefit. This amount comprised $721,296.94 for lost future earnings, $227,961.32 for actual and projected pain and suffering, and $44,116.70 for first-year life care expenses.

An additional lump sum payment of $14,462.96 was made payable to Philip and Pamela Sapienza for past unreimbursable expenses. The award also included an amount sufficient to purchase an annuity for future life-care items.

The annuity payments were life-contingent, payable only while A.S. was alive, and were to grow at four percent compounded annually for non-medical items and five percent compounded annually for medical items. Petitioners were represented by Joseph F.

McDowell, III of McDowell & Osburn, P.A. The total award for damages was $1,007,837.92.

Subsequently, on September 5, 2014, the parties filed a stipulation for attorney fees and costs. Chief Special Master Vowell issued a decision on attorney fees and costs on September 16, 2014, awarding a total of $102,793.98 as a lump sum, jointly payable to petitioners Philip Sapienza and Pamela Sapienza, and their attorney, Joseph F.

McDowell. This award covered all legal expenses incurred in the matter.